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Amorin Constructions Pty Ltd v Kamtech Electrical Services Pty Ltd

Amorin Constructions Pty Ltd v Kamtech Electrical Services Pty Ltd

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Case Copied 4 April 2008 17 min read

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CITATION: Amorin Constructions Pty Ltd v Kamtech Electrical Services Pty Ltd [2008] NSWSC 285
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 27 March 2008

JUDGMENT DATE :
4 April 2008

JUDGMENT OF: Hammerschlag J

DECISION: Application dismissed with costs

CATCHWORDS: CORPORATIONS and PRACTICE AND PROCEDURE - winding up application not determined within six month period provided in s 459R(1) of the Corporations Act 2001 (Cth) - matter ordered within six month period to be set down to be heard after its expiry - no extension granted under s 459R(2) before expiry - application under Uniform Civil Procedure Rules Pt 36 r 36.17 for order supplementing setting down order by adding order for extension - whether relief available

LEGISLATION CITED: Uniform Civil Procedure Rules
Corporations Act 2001 (Cth)
Supreme Court Rules

CASES CITED: Amorin Constructions Pty Ltd v Kamtech Electrical Services Pty Ltd [2008] NSWSC 267
Newmont Yandal Operations Pty Limited v The J Aron Corporation & the Goldman Sachs Group, Inc [2007] NSWCA 195
Symes v Commonwealth (1987) 89 FLR 356
Termijtelen v Van Arkel [1974] 1 NSWLR 525
Storey & Keers Pty Limited v Johnstone (1987) 9 NSWLR 446
Brew v Whitlock (No 3) [1968] VR 504
Campbells Cash and Carry v Fostif Pty Ltd (2006) 229 CLR 386
Westsub Discounts Pty Ltd v Idaps Australia Ltd (No 2) (1990) 94 ALR 310
Hatton v Harris [1892] AC 547
Edwards v Waterproofing Manufacturers (Chendu) Pty Ltd [2000] NSWSC 1227
Reliance Financial Services v Martha’s T Market (2003) 45 ACSR 287
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385
Australian Securities and Investments Commission v Maxwell [2005] NSWSC 49
Westpac Banking Corporation v E & W Jury Pty Ltd (1998) 16 ACLC 547
Timms v Dellaplus Pty Ltd [2008] SASC 17
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590
Australian Securities and Investments Commission v Maxwell [2005] NSWSC 49
Aussie Victoria Plant Hire Pty Ltd v Esanda Finance Corporation Ltd [2008] HCA 9
Farah Constructions Pty Limited v Say-Dee Pty Limited (2007) 81 ALJR 1107
Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327

PARTIES: Amorin Constructions Pty Ltd ACN 090 600 749
Kamtech Electrical Services Pty Ltd ACN 063 608 846

FILE NUMBER(S): SC 4218/2007

COUNSEL: G.B. Carolan (Plaintiff)
T.O. Bland (Defendant)

SOLICITORS: Kelvin Solari (Plaintiff)
MacLarens Lawyers (Defendant)

- 13 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

HAMMERSCHLAG J

4 APRIL 2008

4218/2007 AMORIN CONSTRUCTIONS PTY LTD ACN 090 600 749 -V- KAMTECH ELECTRICAL SERVICES PTY LTD ACN 063 608 846

JUDGMENT

1 HIS HONOUR: This is an application under Pt 36 r 36.17 of the Uniform Civil Procedure Rules (“UCPR”) for an order amending orders made by the Court on 26 November 2007 by including as an additional order that the time for determining the plaintiff’s application for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWSC 285
Decision Date: 4 April 2008

CaseChat Overview and Summary

Amorin Constructions Pty Ltd brought an application for the winding up of Kamtech Electrical Services Pty Ltd, as permitted under the Corporations Act 2001. The application was not determined within the six-month period stipulated by section 459R(1) of the Act. The matter was subsequently ordered to be set down for hearing after the expiration of this period. However, no extension was granted under section 459R(2) of the Act prior to the expiry of the six-month period. Amorin Constructions subsequently applied under Uniform Civil Procedure Rules Part 36 rule 36.17 for an order supplementing the setting down order by adding an order for an extension. The primary legal issue before the court was whether relief was available under rule 36.17 to supplement the setting down order by adding an order for an extension, given the prior failure to obtain an extension under section 459R(2) of the Act.

The court considered whether the application for an extension under rule 36.17 was appropriate given the specific provisions of section 459R of the Act. It was noted that the Act provides a specific process for obtaining an extension of the six-month period within which a winding up application must be determined. The court held that because the applicant had not obtained an extension under section 459R(2) before the expiry of the six-month period, it was not appropriate to grant the requested relief under rule 36.17. The court emphasised the importance of adhering to the statutory framework established by the Act for dealing with such matters and found that the Uniform Civil Procedure Rules could not be used to circumvent the statutory provisions.

The court dismissed the application for an order supplementing the setting down order by adding an order for an extension. The court concluded that the statutory provisions under the Corporations Act were clear and provided the appropriate process for obtaining an extension, and that this process had not been followed in the present case. The court's decision reinforced the principle that statutory timelines and procedures must be strictly observed, and that the Uniform Civil Procedure Rules could not be used to extend statutory periods in a manner not provided for by the Act itself. The court's determination was final and binding, and no further appeal was possible on this matter.

Orders