Amorin Constructions Pty Ltd v Kamtech Electrical Services Pty Ltd

[2008] NSWSC 267

CITATION:	Amorin Constructions Pty Ltd v Kamtech Electrical Services Pty Ltd [2008] NSWSC 267 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	28 February 2008
JUDGMENT OF:	Hammerschlag J
EX TEMPORE JUDGMENT DATE:	28 February 2008
DECISION:	Application incapable of being determined within six month period specified in s 459R(1) of the Corporations Act 2001 (Cth)
CATCHWORDS:	CORPORATIONS - s 459R Corporations Act 2001 (Cth) calculation of six month period within winding up application to be determined under s 459R(1)
LEGISLATION CITED:	Corporations Act 2001 (Cth) Acts Interpretation Act 1901
CASES CITED:	David Grant & Co V Westpac Banking Corporation (1995) 184 CLR 265 ASIC v Maxwell (2005) NSWSC 49 Reliance Financial Services & Martha's T Market Pty Ltd (2003) 45 ACSR 387
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. Carolan (Plaintiff) T.O. Bland (Defendant)
SOLICITORS:	Kevin Solari ( Plaintiff) MacLarens Lawyers (Defendant)

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

HAMMERSCHLAG J

28 FEBRUARY 2008

4218/07 AMORIN CONSTRUCTIONS PTY LTD ACN 090 600 749 -V- KAMTECH ELECTRICAL SERVICES PTY LTD ACN 063 608 846

EX TEMPORE JUDGMENT

1 HIS HONOUR: When this matter was called on today, Mr Carolan of counsel moved on behalf of the plaintiff for the winding up of the defendant company on originating process issued on 27 August 2007. Mr Bland of counsel appeared for the defendant.

2 Upon Mr Carolan informing me that he was moving on the originating process so described, it was apparent that the period specified in s 459R(1) of the Corporations Act 2001 (Cth) (“the Act”), may have expired so that by operation of s 459R(3) of the Act, the application stood dismissed.

3 On behalf of the defendant there was sought to be read an affidavit of Mr Mariano Rozetto, an accountant, sworn 25 February 2008 to which was attached a two-page report. The report made reference to a valuation of a development at Wainwright Road Mount Druitt prepared by Mr Eric Leslie dated 22 February 2008.

4 That valuation had not, I was informed by Mr Carolan, been served until this morning. In the circumstances, the plaintiff was not in a position to proceed.

5 I heard brief submissions on the question which had arisen under s 459R and then stood the matter down until later in the day to allow counsel to consider the position. The issue had not been raised by Mr Bland in his outline of submissions which I received earlier in the morning.

6 I ordered that there be tried before any other issue in the proceedings, the issue whether the application was capable of being determined within 6 months after the date that it was made, namely, whether that period had expired. Section 459R of the Act is in the following terms:

“(1) [ Time limit for determination ] An application for a company to be wound up in insolvency is to be determined within 6 months after it is made.
(2) [ Court may extend time period ] The Court may be order extend the period within which an application must be determined, but only if:
(a) the Court is satisfied that special circumstances justify the extension; and
(b) the order is made within that period as prescribed by subsection (1), or as last extended under this subsection, as the case requires.
(3) [ Where application will be dismissed ] An application is, because of this subsection, dismissed if it is not determined as required by this section.
(4) [ Conditional order ] An order under subsection (2) may be made subject to conditions.”

7 The use of the term "only" in s 459R(2) of the Act makes it clear that an extension of the period in s 459R(1) of the Act may not be granted after it has expired.

8 Section 1322(4)(d) of the Act provides as follows:

“An order extending the period for doing any act, matter or thing or instituting or taking any proceeding under this Act or in relation to a corporation (including an order extending a period where the period concerned ended before the application for the order was made) or abridging the period for doing such an act, matter or thing or instituting or taking such a proceeding.”

9 Having regard to the peremptory terms of s 459R(2) the machinery in s 1322(4)(d) is not available to extend the period after its expiry date: David Grant & Co V Westpac Banking Corporation (1995) 184 CLR 265. No application for extension was made before today.

10 The question is whether if the application were determined today, 28 February 2008, it will have been determined within six months after 27 August 2007.

11 Section 36 of the Acts Interpretation Act 1901 provides as follows:

“ (1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.
(2) Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place.”

12 “Month" is defined in s 22(1) of that Act to mean calendar month.

13 “Calendar month" is defined in s 22(1) to mean the period commencing at the beginning of the day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day or the next month or, if there is no such corresponding day, ending at the expiration of the next month.

14 Accordingly, the 6-month period in s 459R(1) commenced in accordance with s 36(1) of the Acts Interpretation Act on 28 August 2007. Six calendar months runs from the beginning of 28 August 2007 and expires immediately before the beginning of the corresponding date of February 2008, that is immediately before 28 February 2008, namely, at the end of 27 February 2007. It follows that the application is out of time.

15 In ASIC v Maxwell (2005) NSWSC 49 Barrett J reviewed authorities in this and in the Federal jurisdiction which have, in circumstances where, amongst others, applications for winding up have been set down by the Court on dates outside the period specified in s 459R(1) made orders under what is commonly referred to as the slip rule. Courts have done so on the basis that the slip rule is available or the inherent jurisdiction of the Court is available because the Court could not have intended to set a matter down when in the absence of an application for an extension under s 459R(2) it would have been automatically dismissed before the date determined for the hearing.

16 In the short time I have had available, I have not found any authority other than at first instance in this Court. The jurisdiction of the Court in circumstances not far different from the present, was considered by Young CJ in Eq in Reliance Financial Services & Martha's T Market Pty Ltd (2003) 45 ACSR 387. In that case on the facts with which his Honour was concerned his Honour refused an application under the slip rule.

17 Mr Carolan informed me that the plaintiff wished to make an application under the slip rule. Unless such an application is successful, this application has been dismissed by operation of law. There is nothing to prevent such an application being made.

18 The answer to the separate question is that the application for winding up is not capable of being determined within six months after the date it was made.

19 I will stand the proceedings over to Wednesday 12 March 2008 at 9.30am before me. The plaintiff has leave to file and serve any motion for slip rule relief on or before Thursday 6 March 2008 and to make that motion returnable before me at 9.30am on the 12th March 2008.

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31/03/2008 - insert the word "is" after the word question - Paragraph(s) 18