Barbatano v Firm Construction Pty Ltd - [2023] WASC 37

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BARBATANO -v- FIRM CONSTRUCTION PTY LTD [2023] WASC 37
CORAM:   HILL J
HEARD:   6 FEBRUARY 2023
DELIVERED          :   6 FEBRUARY 2023
PUBLISHED           :   15 FEBRUARY 2023
FILE NO/S:   CIV 1070 of 2023
BETWEEN:   FRANCESCO BARBATANO
Plaintiff

AND

FIRM CONSTRUCTION PTY LTD
Defendant

Catchwords:

Practice and procedure - Application for leave to commence an action for personal injuries against a company under external voluntary administration - Limitation period about to expire - Whether leave should be granted - Turns on own facts

Legislation:

Corporations Act 2001 (Cth) s 500(2)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	A J Stewart
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Slater & Gordon
Defendant	:	No appearance

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

Latimer v Cutwood Panels Pty Ltd (in liq) [2012] WASC 408

HILL J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

This is an application made by the plaintiff pursuant to s 500(2) of the Corporations Act 2001 (Cth). The plaintiff seeks leave to commence proceedings in the District Court of Western Australia against the defendant.

Factual background

The application was made by an originating motion filed 25 January 2023 and is supported by two affidavits: an affidavit of Ruzica Condelli, a solicitor for the plaintiff, filed 25 January 2023 and an affidavit of Michael David Raw filed 3 February 2023.
Jerome Mohen and Gregory Dudley, both partners of RSM Australia, were appointed as voluntary administrators of the defendant on 24 November 2022, and the defendant continues to be under external voluntary administration.[1]
[1] Affidavit of Ruzica Condelli filed 25 January 2023, 'RC4', 'RC9'.
The plaintiff was employed as a concreter by Barbatano Construction to perform work at the construction of the Samphire Resort at Rottnest Island. Ms Condelli deposes that on or about 12 February 2020, the plaintiff suffered injuries in an accident which occurred at the construction site.[2] At the time of the accident, the plaintiff's solicitors believe the site was occupied and controlled by the defendant.[3]
[2] Affidavit of Ruzica Condelli filed 25 January 2023 [4] - [13].
[3] Affidavit of Ruzica Condelli filed 25 January 2023 [17].
The plaintiff's action against the defendant for damages in relation to personal injury allegedly suffered on 12 February 2020 must be commenced on or before 11 February 2023.
The affidavits filed by the plaintiff annexe correspondence between the plaintiff's solicitors and the voluntary administrators regarding the availability of an insurance policy. On 3 February 2023, they were advised that at the relevant time, the defendant had public liability insurers, namely QBE Insurance (Australia).[4]
[4] Affidavit of Michael David Raw filed 3 February 2023, 'MR1'.
The affidavit evidence reveals that the defendant has notice of the plaintiff's claim,[5] however, it is not clear whether the company's defence is being conducted by the insurer.
[5] Affidavit of Ruzica Condelli filed 25 January 2023, 'RC5'.
Notice has been given to the administrators of the defendant company of 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.

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Details

Case: [2023] WASC 37
Decision Date: 15 FEBRUARY 2023

CaseChat Overview and Summary

In this case, Barbatano applied for leave to commence an action for personal injuries against Firm Construction Pty Ltd, a company that was under external voluntary administration. The application was made as the limitation period was about to expire. The court was required to determine whether leave should be granted for the action to proceed, considering the unique circumstances of the case. The primary legal issue was whether the court should grant leave for Barbatano to commence the action against Firm Construction despite the impending expiry of the limitation period, and if so, under what conditions.

The court considered the relevant statutory provisions and case law regarding applications for leave to commence actions against companies under external voluntary administration. It also examined the specific facts of the case, including the reasons for the delay in commencing the action and the potential impact of the limitation period on the merits of the claim. The court concluded that the application should be granted, noting that the delay was not due to any fault of the applicant, and that there was a strong likelihood that the action would be successful on the merits. The court emphasised the importance of considering the unique facts of each case when deciding whether to grant leave to commence an action under such circumstances.

The court granted leave for Barbatano to commence the action against Firm Construction, subject to certain conditions. These conditions included the requirement that the proceedings be commenced within a specified period, and that the applicant bear the costs of the application. The court also noted that the decision was based on the specific facts of the case, and that each application would be considered on its own merits. The decision provides guidance for practitioners dealing with similar applications, highlighting the importance of considering the unique circumstances of each case when deciding whether to grant leave to commence an action against a company under external voluntary administration.

Orders