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Arogen v Leighton

Arogen v Leighton

Case [2013] NSWSC 1099 19 July 2013

Stay of Proceedings

Limitation Periods

Interlocutory Orders

Admissibility of Evidence

Corporate Law & Governance

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Arogen v Leighton [2013] NSWSC 1099
Hearing dates: 18/07/2013
Decision date: 19 July 2013
Jurisdiction: Equity Division - Technology and Construction List
Before: McDougall J
Decision:
Time for service of evidence to be extended on conditions. Declaration, that plaintiff's cross-claim against defendant in other proceedings, to be made if plaintiff complies with orders to be made.

Catchwords:
CORPORATIONS - ORDERS & DIRECTIONS - application for declaration that cross-claim does not stand dismissed - where court orders that proceedings will stand dismissed if cross-claimant fails to file and serve evidence by a particular date - where cross-claimant fails to file and serve evidence - where cross-claimant goes into administration - whether appointment of voluntary administrator has the effect of staying court orders - whether s440D of the Act applies to cross-claim brought by a company in administration - orders not stayed by appointment of administrator - Corporations Act 2001 (Cth) s440D

CORPORATIONS - INTERPRETATION - Corporations Act 2001 (Cth) s440D - meaning of "in relation to" - meaning of "a proceeding" - meaning of "property"
PRACTICE & PROCEDURE - ORDERS & DIRECTIONS - NSW Supreme Court - NSW Supreme Court Rules - application for declaration that cross-claim does not stand dismissed - where court orders that proceedings will stand dismissed if cross-claimant fails to file and serve evidence by a particular date - where cross-claimant fails to file and serve evidence - whether court can extend time for compliance with order - court may extend time for compliance unless order dismissing cross-claim precludes it - whether court should exercise discretion to extend the time for compliance - relevant principles - Uniform Civil Procedure Rules 2005 (NSW) ss 1.12; 36.16; 56
Legislation Cited: Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Supreme Court Rules 1970 (NSW)
Cases Cited: Australian Securities Commission v Marlborough Coal Mines (1993) 177 CLR 485
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Bailey v Marinoff (1971) 125 CLR 529
Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381
Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Foxcroft v The Ink Group Pty Ltd (1994) 15 ACSR 203
Hutchinson v Nominal Defendant [1972] 1 NSWLR 443
Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd (2011) 285 ALR 207
Leighton Contractors v Arogen [2012] NSWSC 1323
Leighton v Arogen [2012] NSWSC 1370
Mead Corporation v Carbonless Papers (Australia) Pty Ltd [2002] WASC 268
MG Corrosion Consultants Pty Ltd v Gilmour (2012) 88 ACSR 170
Travelex Limited v Commissioner of Taxation (2010) 241 CLR 510
Uvanna Pty Limited v Tsang Chi Ming (1997) 15 ACLC 443
Category: Procedural and other rulings
Parties: Arogen Pty Limited (Administrator Appointed) (Plaintiff)
Leighton Contractors Pty Limited (Defendant)
Representation: Counsel:
N A Nicholls / R Bianchi (Plaintiff)
M G Rudge SC (Defendant)
Solicitors:
Moray &…

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.

Continue reading Arogen v Leighton

Details

AGLC: Arogen v Leighton [2013] NSWSC 1099
Case: [2013] NSWSC 1099
Decision Date: 19 July 2013

CaseChat Overview and Summary

The proceedings in Arogen v Leighton before the NSW Supreme Court involved a dispute between two companies, Arogen and Leighton, regarding a cross-claim. The primary issue arose when the court ordered that the cross-claim by Leighton would be dismissed if it failed to file and serve evidence by a specified date. Leighton did not meet this deadline, leading to the cross-claim being dismissed. Subsequently, Leighton entered into administration, prompting a question about whether this stay the court's orders, and whether section 440D of the Corporations Act 2001 (Cth) applied to proceedings brought by a company in administration.

The court was required to determine the implications of Leighton's administration on the prior court orders and whether the appointment of a voluntary administrator stayed those orders. Additionally, the court needed to interpret section 440D of the Act, focusing on the meanings of "in relation to," "a proceeding," and "property." The court also considered whether it could extend the time for compliance with the order dismissing the cross-claim, in light of Leighton's failure to meet the original deadline.

The court ruled that the appointment of a voluntary administrator did not stay the court's orders. The interpretation of section 440D revealed that it did not apply to proceedings brought by a company in administration. Consequently, the orders dismissing the cross-claim remained in effect. Regarding the extension of time for compliance, the court held that it could extend the time unless dismissing the cross-claim precluded such an extension. The court exercised its discretion to extend the time for compliance, finding it appropriate given the circumstances. The final orders reflected the court's determination that the cross-claim would stand dismissed unless Leighton met certain conditions within a new timeframe.

Orders