Legal Research
Cases
Austructures Pty Ltd v Makin

Austructures Pty Ltd v Makin

Case [2014] VSC 544 27 October 2014

Limitation Periods

Statutory Interpretation

Jurisdiction

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S CI 2014 03514

AUSTRUCTURES PTY LTD (ACN 113 589 718)

and

PAGES HIRE CENTRE

First Plaintiff

Second Plaintiff

VICTOR ROGER MAKIN

and

RODER HTS HOCKER GMBH

First Defendant

Second Defendant

---

JUDGE:	ALMOND J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2014
DATE OF JUDGMENT:	27 October 2014
CASE MAY BE CITED AS:	Austructures Pty Ltd v Makin
MEDIUM NEUTRAL CITATION:	[2014] VSC 544

---

PRACTICE & PROCEDURE – Pleadings – Application for leave to amend statement of claim – Expiry of limitation period – Addition of statute-barred causes of action – Corporations Act 2001 (Cth) s 1317K, 1322(4)(d) – Whether limitation period in s 1317K can be extended by s 1322(4)(d) – Whether s 1317K bars remedy or right of action – Statutory construction of ‘no later than’ in s 1317K – No discretion to extend time prescribed in s 1317K.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	C R Northrop	Matthew Shaw & Associates
For the Defendants	S H Parmenter	Minter Ellison

HIS HONOUR:

By summons filed on 8 August 2014, the plaintiffs seek leave to amend their statement of claim. In support of the application, the plaintiffs rely upon an affidavit of Nicholas Michael John Baldock, dated 7 August 2014, which exhibits the proposed amended statement of claim.[1]
[1]The proposed third amended statement of claim is Exhibit NMJB1 to the affidavit of Nicholas Michael John Baldock, affirmed 7 August 2014 (‘Baldock affidavit’).

The defendants oppose the application to amend and rely upon two affidavits of Jonathan Leigh Kelp, dated 3 March 2014 and 18 August 2014.

The plaintiffs submit that the proposed amendments:

(a)expand existing claims based on breaches of the Corporations Act2001 (Cth) (‘the Act’) to include claims against the second defendant (paragraphs 49H to 49J);
(b)would allow the plaintiffs to seek, if necessary, an extension of time for the commencement of the proceeding for breach of statutory obligations (paragraph 49K and paragraph 2B of the prayer for relief);
(c)claim from the second defendant any benefit it received from the first defendant’s breaches of fiduciary obligations (paragraphs 49L and 49M).

The current statement of claim, among other things, sets out alleged contraventions by the first defendant, Victora Roger Makin, of s 180(1) of the Act (duty to exercise care and diligence), s 181(1) of the Act (duty to exercise powers in good faith and for a proper purpose), s 182(1) of the Act (duty not to improperly use position), and s 183(1) of the Act (duty not to improperly use information). The current statement of claim also sets out limited claims against the second defendant.

The alleged contraventions by Mr Makin are the foundation for the proposed claims against the second defendant (Roder) for involvement in such contraventions (as defined in s 79 of the Act). The contraventions are alleged to have occurred during the period late February 2007 to May 2007. On their face, it is clear that the…

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 Austructures Pty Ltd v Makin

Details

AGLC: Austructures Pty Ltd v Makin [2014] VSC 544
Case: [2014] VSC 544
Decision Date: 27 October 2014

CaseChat Overview and Summary

Austructures Pty Ltd sought leave to amend its statement of claim against Makin after the statutory limitation period had expired. The Federal Court was tasked with determining whether the amendment, which included causes of action that were statute-barred, was permissible under the Corporations Act 2001 (Cth). The primary legal issue before the court was whether section 1322(4)(d) could extend the limitation period prescribed in section 1317K, and if section 1317K barred the remedy or right of action.

The court held that section 1317K sets a fixed limitation period that cannot be extended by section 1322(4)(d). It found that section 1317K bars the remedy or right of action once the time limit is reached. The court also interpreted the phrase "no later than" in section 1317K as setting an absolute deadline, leaving no discretion to extend the prescribed time. The court rejected the argument that the limitation period could be extended under section 1322(4)(d) and concluded that the amendment to include the statute-barred causes of action was not permissible.

Consequently, the application for leave to amend the statement of claim was dismissed. The court held that there was no discretion to extend the time prescribed in section 1317K, and as such, the amendment was not allowable. The court's decision underscores the rigid nature of statutory limitation periods and the importance of strict compliance with statutory timelines in litigation.

Orders