Barboutis v The Kart Centre Pty Ltd - [2019] WASCA 184

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   BARBOUTIS -v- THE KART CENTRE PTY LTD [2019] WASCA 184
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   13 NOVEMBER 2019
DELIVERED          :   13 NOVEMBER 2019
PUBLISHED           :   15 NOVEMBER 2019
FILE NO/S:   CACV 133 of 2019
BETWEEN:   COLIN JOHN BARBOUTIS
First Appellant
BULLSBROOK CAPITAL AS TRUSTEE OF THE ATHENA TRUST
Second Appellant
AND
THE KART CENTRE PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   ACTING MASTER WHITBY
Citation: BARBOUTIS -v- THE KART CENTRE PTY LTD [2019] WASC 353
File Number             :   COR 73 of 2019

Catchwords:

Corporations - Appeal against dismissal of an application to wind up a company in insolvency - Whether appeal must be determined within the period provided for by s 459R of the Corporations Act - Whether an extension of the period for determination of the application to wind the company up in insolvency is required in order to preserve the effective exercise of the court's appellate jurisdiction

Legislation:

Corporations Act 2001 (Cth), s 459R

Result:

Application dismissed

Category: A

Representation:

Counsel:

First Appellant	:	C K Pearce
Second Appellant	:	C K Pearce
Respondent	:	P A Martino

Solicitors:

First Appellant	:	Blackwall Legal LLP
Second Appellant	:	Blackwall Legal LLP
Respondent	:	P A Martino

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

Complete Hire and Sales Pty Ltd v Terra Firma Constructions Pty Ltd [2018] WASCA 88
Jebb v Superior Lawns Australia Pty Ltd [2018] WASCA 123
Merrill Lynch Equities (Australia) Ltd v Triangle Packing Case Pty Ltd [1999] FCA 810; (1999) 17 ACLC 1522
Owen-Pearse v Lander Land Co Pty Ltd [2018] FCA 2077
Smolarek v Liwszyc [No 2] [2006] WASCA 50 (S); (2006) 32 WAR 129

REASONS OF THE COURT:

Summary

On 2 October 2019, the acting master dismissed the appellants' application to wind up the respondent. The appellants have appealed against that order. They seek an extension of the period within which the application to the primary court must be determined, pursuant to s 459R(2) of the Corporations Act 2001 (Cth) (Extension Application).
At the conclusion of the hearing of the Extension Application, we dismissed the application for reasons to be published. These are our reasons.
In essence, we are of the view that references in s 459R to an application being 'determined' are to an order of the primary court finally disposing of the application by either dismissing it or ordering that the company be wound up in insolvency. Section 459R requires one of those orders to be made within six months, or such period as is extended, and provides for the automatic dismissal of the application to wind up in insolvency if neither of those orders is made within the prescribed period. However, if either an order dismissing the application or an order winding up the company in insolvency is made within the prescribed period, the application has been 'determined', thus satisfying the requirements in…

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.

Keep reading for free

Create a free CaseChat account to read Barboutis v The Kart Centre Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] WASCA 184
Decision Date: 15 NOVEMBER 2019

CaseChat Overview and Summary

The appeal arose from an application to wind up a company in insolvency. The applicant, Barboutis, sought to wind up The Kart Centre Pty Ltd. The primary judge dismissed the application, and Barboutis appealed against this decision. The legal issues before the court were whether the appeal must be determined within the period provided for by s 459R of the Corporations Act and whether an extension of the period for determination of the application to wind the company up in insolvency was required in order to preserve the effective exercise of the court's appellate jurisdiction.

The court found that the appeal was not subject to the time limit prescribed by s 459R of the Corporations Act. The appeal was not an appeal from a decision or order of the court, but rather from the dismissal of an application to wind up the company in insolvency. The court held that the dismissal of the application was not a decision or order of the court, but rather a step in the process of determining whether the application should be granted. The court also found that an extension of the period for determination of the application was required in order to preserve the effective exercise of the court's appellate jurisdiction. The court held that the effective exercise of the court's appellate jurisdiction was dependent on the court being able to consider the merits of the appeal, and that this could only be done if the appeal was determined within a reasonable time.

The court dismissed the appeal and ordered that the appeal be determined within six months of the date of the judgment. The court found that this period was sufficient to allow the appellant to prepare and file its appeal, and to allow the respondent to prepare its response to the appeal. The court also found that this period was reasonable in the circumstances of the case.

Orders