Aroona Developments Pty Ltd (in liq) v Killen - [2004] NSWCA 363

Reported Decision:
50 ACSR 668

Court of Appeal

CITATION: Aroona Developments Pty Limited (In Liq) v Killen [2004] NSWCA 363

HEARING DATE(S): On the papers

JUDGMENT DATE:
6 October 2004

JUDGMENT OF: Ipp JA at 1

DECISION: Application to strike out the appeals dismissed with costs.

CATCHWORDS: Application to strike out appeals under s 1321 Corporations Act 2001 (Cth) - whether statutory financial limitations threshold under s 101(2)(r) Supreme Court Act 1970 be determined by amount in judgment (in proceedings involving liquidation) or determined by amount the party can or does pay against such a judgment - Held: Whether statutory threshold of s 101(2)(r) is met is determined by amount on judgment, not amount paid or able to be paid: Oertel v Crocker 75 CLR 261 - Moller v Roy 132 CLR 622 - leave under s 471B Corporations Act 2001 (Cth) not required, leave granted nunc pro tunc: Re Gordon Grant & Grant Pty Ltd (1982) 1 ACLC 196. D

LEGISLATION CITED: Corporations Act 2001 (Cth), ss 132(1), 471B
Judiciary Act 1903 (NSW), s 35(1)(a)(2)
Supreme Court Act 1970, s 101(2)(r)
Supreme Court Rules, Pt 51, r 8

CASES CITED: Moller v Roy (1975) 132 CLR 622
Oertel v Crocker (1947) 75 CLR 261
Re Gordon Grant & Grant Pty Limited (1982) 1 ACLC 196

PARTIES :
Aroona Developments Pty Limited (In Liquidation) (Claimant)
Rosanne Lyle Fulton Killen (Opponent)

FILE NUMBER(S): CA 40044/04; 40054/04

COUNSEL:

SOLICITORS: Watson Mangioni (Claimant)
McKell's (Opponent)

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): ED 4112/02; ED 1810/02

LOWER COURT
JUDICIAL OFFICER : Austin J

CA 40044/04
ED 4112/02
CA 40054/04
ED 1810/02

IPP JA
Wednesday, 6 October 2004

AROONA DEVELOPMENTS PTY LIMITED (IN LIQUIDATION) v ROSANNE LYLE FULTON KILLEN

Judgment

1 IPP JA: On 8 December 2003 Austin J delivered judgment in respect of two sets of proceedings before him. The claimant, Aroona Developments Pty Limited (In Liquidation) (“Aroona”), was the plaintiff in one set of proceedings. The opponent, Mrs Rosanne Killen, was the plaintiff in the other.

2 Both sets of proceedings were appeals under s 1321 of the Corporations Act (Cth) 2001. The appeals were against decisions by Mr Rennie, the liquidator of Rotor-Work Pty Limited (“Rotor-Work”), whereby Mr Rennie had rejected proofs of debt lodged by Aroona and Mrs Killen.

3 Mrs Killen was a party to the appeal brought by Aroona and Aroona was a party to the appeal brought by Mrs Killen. The liquidator submitted to the orders of the Court, except with respect to costs. Austin J ordered that the two appeals be heard together, and that the evidence in one be evidence in the other.

4 The proofs of debt of Aroona and Mrs Killen related to the same facts and transactions and the hearing before Austin J proceeded on the basis that both Aroona and Mrs Killen claimed the sum of $616,041.

5 The proof of debt of Aroona described the debt as “loan funds”. Mrs Killen’s proof of debt described the amount claimed…

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 Aroona Developments Pty Ltd (in liq) v Killen

Details

AGLC: Aroona Developments Pty Ltd (in liq) v Killen [2004] NSWCA 363
Case: [2004] NSWCA 363
Decision Date: 6 October 2004

CaseChat Overview and Summary

The Supreme Court of New South Wales, Court of Appeal, considered an application by Aroona Developments Pty Ltd (in liq) to strike out appeals brought by Killen. The core of the dispute concerned the interpretation of a statutory financial threshold relevant to the appeals, specifically whether it was determined by the amount in the judgment or the amount a party could or did pay against such a judgment in proceedings involving a liquidation.

The primary legal issue before the Court of Appeal was to determine the correct method for assessing whether the statutory financial limitations threshold under section 101(2)(r) of the *Supreme Court Act 1970* (NSW) had been met. This involved deciding whether the relevant amount was the figure stated in the judgment itself, or the actual amount paid or capable of being paid by the party against that judgment. A secondary issue related to whether leave under section 471B of the *Corporations Act 2001* (Cth) was required for the appeals.

Ipp JA, applying established High Court authority in *Oertel v Crocker* and *Moller v Roy*, held that the statutory threshold under section 101(2)(r) is determined by the amount specified in the judgment, irrespective of the amount paid or payable. Regarding the *Corporations Act* issue, the Court found that leave under section 471B was not required, but if it were, it would be granted *nunc pro tunc* (now for then), referencing the principle in *Re Gordon Grant & Grant Pty Ltd*.

Consequently, the application to strike out the appeals was dismissed, and Aroona Developments Pty Ltd (in liq) was ordered to pay Killen's costs.

Orders

Orders of the court

Application to strike out the appeals dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Aroona Developments Pty Limited (In Liq) v Killen [2004] NSWCA 363
HEARING DATE(S):	On the papers
JUDGMENT DATE:	6 October 2004
JUDGMENT OF:	Ipp JA at 1
DECISION:	Application to strike out the appeals dismissed with costs.
CATCHWORDS:	Application to strike out appeals under s 1321 Corporations Act 2001 (Cth) - whether statutory financial limitations threshold under s 101(2)(r) Supreme Court Act 1970 be determined by amount in judgment (in proceedings involving liquidation) or determined by amount the party can or does pay against such a judgment - Held: Whether statutory threshold of s 101(2)(r) is met is determined by amount on judgment, not amount paid or able to be paid: Oertel v Crocker 75 CLR 261 - Moller v Roy 132 CLR 622 - leave under s 471B Corporations Act 2001 (Cth) not required, leave granted nunc pro tunc: Re Gordon Grant & Grant Pty Ltd (1982) 1 ACLC 196. D
LEGISLATION CITED:	Corporations Act 2001 (Cth), ss 132(1), 471B Judiciary Act 1903 (NSW), s 35(1)(a)(2) Supreme Court Act 1970, s 101(2)(r) Supreme Court Rules, Pt 51, r 8
CASES CITED:	Moller v Roy (1975) 132 CLR 622 Oertel v Crocker (1947) 75 CLR 261 Re Gordon Grant & Grant Pty Limited (1982) 1 ACLC 196
PARTIES :	Aroona Developments Pty Limited (In Liquidation) (Claimant) Rosanne Lyle Fulton Killen (Opponent)
FILE NUMBER(S):	CA 40044/04; 40054/04
COUNSEL:
SOLICITORS:	Watson Mangioni (Claimant) McKell's (Opponent)

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	ED 4112/02; ED 1810/02
LOWER COURT JUDICIAL OFFICER :	Austin J