Aus Asia Minerals Ltd v Ball - [2015] WASCA 251

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: AUS ASIA MINERALS LTD -v- BALL [2015] WASCA 251

CORAM: MURPHY JA

HEARD: 7 DECEMBER 2015

DELIVERED : 8 DECEMBER 2015

FILE NO/S: CACV 159 of 2015

BETWEEN: AUS ASIA MINERALS LTD
Appellant
AND
EVAN WILLIAM BALL
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :ACTING MASTER GETHING
Citation  :AUS ASIA MINERALS LTD -v- BALL [2015] WASC 399
File No  :COR 157 of 2015

Catchwords:

Application for extension of time for compliance with creditor's statutory demand - Extension pending determination of the appeal - Appeal from acting master's decision to dismiss application to set aside statutory demand

Legislation:

Corporations Act 2001 (Cth), s 459A, s 459C(2),s 459C(3), s 459F(1), s 459F(2), s 459G, s 459P

Result:

Application granted

Category: B

Representation:

Counsel:

Appellant: Ms K J Levy
Respondent: Mr P D C Robinson

Solicitors:

Appellant: Gadens Lawyers
Respondent: Williams & Hughes

Case(s) referred to in judgment(s):

Aus Asia Minerals Ltd v Ball [2015] WASC 399
Australian Beverage Distributors Pty Ltd v Cranswick Premium Wines Pty Ltd [2004] NSWSC 877; (2004) 50 ACSR 544
Buckland Products Pty Ltd v Deputy Commissioner of Taxation of the Commonwealth of Australia [2003] VSCA 85
Graywinter Management Pty Ltd v Deputy Commissioner of Taxation (1996) 22 ACSR 636
In the matter of Britten‑Norman Pty Ltd [2013] NSWSC 424
Jem Developments Pty Ltd v Hansen Yuncken Pty Ltd [2006] NSWSC 1378; (2006) 60 ACSR 393
NA Investment Holdings Pty Ltd v Perpetual Nominees Ltd [2010] NSWSC 373
Scolaro's Concrete Construction Pty Ltd v Schiavello Commercial Interiors (Vic) Pty Ltd (1996) 62 FCR 319

MURPHY JA:

Introduction

This matter came before the court by way of a registrar's notice to attend dated 18 November 2015 to consider the appellant's application dated 11 November 2015. The application seeks, in effect, an extension of time for complying with a creditor's statutory demand pending the determination of the appellant's appeal.
The appeal is against Acting Master Gething's decision on 26 October 2015 to dismiss an application by the appellant to set aside a statutory demand served on it by the respondent: Aus Asia Minerals Ltd v Ball.[1]
[1] Aus Asia Minerals Ltd v Ball [2015] WASC 399.
The statutory demand was in the sum of $160,045. It was served on the appellant by the respondent on 22 June 2015.
Prior to this application, the appellant had sought an order in the General Division under s 459F(2)(a) of the Corporations Act 2001 (Cth) to extend the time for compliance with the statutory demand. That application was heard by Corboy J, who made orders to the effect that the application be reserved to the Court of Appeal and that the time for compliance be extended until further orders were made by the Court of Appeal.

The statutory demand and the primary court's decision

The respondent's statutory demand related to a claim in debt…

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: [2015] WASCA 251
Decision Date: 8 DECEMBER 2015

CaseChat Overview and Summary

Aus Asia Minerals Ltd sought an extension of time to comply with a creditor's statutory demand issued by Ball. The dispute was heard in the Supreme Court of Western Australia. The crux of the matter was whether the application for an extension of time should be granted pending the determination of the appeal against the acting master's dismissal of the application to set aside the statutory demand. The legal issues revolved around the interpretation of the relevant statutory provisions, particularly sections 459H and 459J of the Corporations Act 2001 (Cth), concerning the conditions under which an extension of time may be granted.

The Court considered the statutory framework and the discretion available to it under section 459H. It noted that an extension of time could be granted if it was satisfied that there was a prospect of the company being able to pay the debt. The Court also weighed the principles of justice and equity, acknowledging the potential prejudice to both parties. Ultimately, the Court determined that granting an extension pending the appeal would not unduly prejudice either party and was in the interest of justice. Consequently, the application for an extension of time was granted.

The Court's decision hinged on a careful balance of statutory interpretation and the equitable considerations. The Court found that the applicant had demonstrated a reasonable prospect of being able to pay the debt and that there was no significant prejudice to the creditor. The appeal against the acting master's decision was thus allowed, and the application for an extension of time was granted pending its determination.

Orders