Anderson v Palmer

[2002] NSWSC 841

CITATION:	Anderson v Palmer [2002] NSWSC 841
CURRENT JURISDICTION:	Equity Division Corporations List
FILE NUMBER(S):	SC 4092/02
HEARING DATE(S):	02/09/02
JUDGMENT DATE:	2 September 2002
PARTIES :	Christine Joyce Anderson (P) Christopher John Palmer (D) Kenneth Alexander Davies, Sandra Louise Davies and Skadtag Pty Ltd (Applicants)
JUDGMENT OF:	Young CJ in Eq

COUNSEL :	B Rayment QC and S Balafoutis (P) T Edwards (S) (D) J T Johnson (Applicants)
SOLICITORS:	Rockliffs (P) Truman Hoyle (D)
CATCHWORDS:	CORPORATIONS [223]- Winding up- Termination- Who may be heard- "Any other interested person"- Ambit- Wide, but not so wide as to impede expeditious hearing of essence of application.
LEGISLATION CITED:	Corporations Act Rules 2.13
CASES CITED:	Allatech Pty Ltd v Construction Management Group Pty Ltd (2002) 41 ACSR 587 United States Tobacco Co v Minister for Consumer Affairs (1988) 83 ALR 79
DECISION:	Application refused.

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

YOUNG CJ in EQ

Monday 2 September 2002

4092/02 – ANDERSON v PALMER

JUDGMENT

1 HIS HONOUR: This is an application by Kenneth Alexander Davies, Sandra Louise Davies and Skadtag Pty Ltd for leave under r 2.13 of the Corporations Act Rules for leave to be heard in the current proceedings without becoming a party. Mr J Johnson, who appeared for the applicants, initially said that his clients were not creditors, contributors or officers, though later amended that submission to say that his clients were contingent creditors. However, he said that his clients were within the category "any other interested person" under that rule.

2 So far as I know, there has been no decision as to what is an interested person under that rule. There are cases on other legislation, such as under the Commonwealth Administrative Decisions (Judicial Review) Act, 1977, section 12, for example as United States Tobacco Co v Minister for Consumer Affairs (1988) 83 ALR 79 and under the administration provision of the Corporations Act, 2001 such as Allatech Pty Ltd v Construction Management Group Pty Ltd (2002) 41 ACSR 587, which suggest that there is a bias in this sort of application to giving those words a very wide meaning.

3 However, there is also within this Act, the administration provision aside, the principle to be remembered that the court is to deal with matters as shortly, cheaply and expeditiously as possible, and that generally that aim is not achieved by allowing people with insufficient interest to intervene unwantedly in other people's litigation. The expression is wide, but not so wide as to allow peripheral concerns of non-parties to impede the expeditious disposal of a proper application.

4 It is true that in the instant case one could not describe Mr Johnson's clients as busybodies, but on the other hand, they have a relatively remote connection with the instant proceedings, which are to terminate a winding up.

5 The connection is that the company currently in liquidation and Mr Johnson's clients were partners in respect of a hotel at North Wollongong. The accounts in the liquidation and the taxation position of the various parties may impinge on each other. However, the material, other than possible tax liabilities, shows that this company is completely solvent and if it is completely solvent then it should not be in liquidation.

6 The only thing that is being raised is that if certain events happen, and to predicate those certain events happening the liquidator would have had not to have complied with the taxation laws, there would be a contingent liability on the clients for whom Mr Johnson acts, for which they may have some claim against the company.

7 It seems to me that this is too remote even to class Mr Johnson's clients, on the evidence I have before me, as contingent creditors. I do not consider that they have sufficient interest to be given leave under the rule. If they have a claim against the company they can make that claim against the company as controlled by the directors, as easily as the company controlled by the liquidator.

8 There has been some suggestion that the liquidator's administration has almost produced a set of accounts which will resolve the whole dispute between the parties, whereas if the company goes back into the hands of the directors there will have to be a costly enquiry and accounts before the Master. However, again this is really a peripheral matter. If the company is solvent, it should go back to the directors. If it is not, it should stay in liquidation. That is the question the parties want to litigate and I do not think it should be complicated by what the proposed interveners want to do.

9 Accordingly, I reject the application. I order that the applicants pay the costs of the aborted application.

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Last Modified: 09/12/2002