Barlow v WA Concreting Pty Ltd (in Liquidation)

[2025] WASC 156

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BARLOW -v- WA CONCRETING PTY LTD (IN LIQUIDATION) [2025] WASC 156

CORAM:   HILL J

HEARD:   15 APRIL 2025

DELIVERED          :   15 APRIL 2025

PUBLISHED           :   6 MAY 2025

FILE NO/S:   COR 51 of 2025

BETWEEN:   BEVIN GARTH MARK BARLOW

Plaintiff

AND

WA CONCRETING PTY LTD (IN LIQUIDATION)

Defendant

Catchwords:

Corporations - External administration - Application for leave to commence proceedings against company in liquidation - Whether an insurer will respond to proceedings commenced against company - Whether leave should be granted - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 471B

Result:

Application granted

Category:    B

Representation:

Counsel:

Plaintiff	:	S J Reeves
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Separovic Injury Lawyers
Defendant	:	No appearance

Case referred to in decision:

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

HILL J:

1. By an originating process dated 7 April 2025, the plaintiff seeks leave pursuant to s 471B of the Corporations Act 2001 (Cth) (Act) to commence civil proceedings in the District Court of Western Australia against the defendant.

2. The application is supported by an affidavit of Stephanie Jane Reeves, a solicitor for the plaintiff, which was filed on 11 April 2025.[1]

   [1] The original affidavit was filed on 9 April 2025.  An amended affidavit correcting a number of typographical errors was filed on 11 April 2025.

Factual background

1. The factual background to the application is set out in Ms Reeves' affidavit and can be summarised as follows. 

2. As at 2 May 2022, the plaintiff was employed by the defendant, WA Concreting Pty Ltd (Company), as a rigger.  On that day, he was working at 61 Armstrong Road in Hope Valley, Western Australia (Site), when he had an accident and suffered injuries to his lumbar spine.[2]

   [2] Affidavit of Stephanie Jane Reeves filed 11 April 2025 [5] - [6]. 

3. On 12 August 2022, the Company's workers' compensation provider issued a Form 3A notice to the plaintiff accepting liability to make weekly compensation payments and other statutory benefits as a consequence of the plaintiff's injury.[3]

   [3] Affidavit of Stephanie Jane Reeves filed 11 April 2025 [7], 'SR-5'. 

4. On 11 February 2025, Steven Neville Staatz was appointed as liquidator of the Company by the Supreme Court of Queensland.[4]

   [4] Affidavit of Stephanie Jane Reeves filed 11 April 2025 [8], 'SR-6'. 

5. The plaintiff proposes commencing action against the Company for damages in relation to the personal injury that he suffered on 2 May 2022.  Any action must be commenced on or before 2 May 2025. 

6. If leave is granted by this court, the plaintiff intends to file an election with WorkCover WA, pursuant to s 424 of the Workers' Compensation and Injury Management Act 2023 (WA), to retain the right to seek common law damages against the Company.  The plaintiff will then subsequently file a writ of summons in the District Court of Western Australia in the form of the proposed writ attached to Ms Reeves' affidavit. 

7. Notice of the application has been given to the liquidator of the Company, who has confirmed that he is authorised to accept service of legal documents on behalf of the Company.[5]

   [5] Affidavit of Stephanie Jane Reeves filed 11 April 2025 [14], 'SR-10', 'SR-12'.

8. Notice of the application has also been given to the solicitors of the Company's workers' compensation insurance provider.[6]

   [6] Affidavit of Stephanie Jane Reeves filed 11 April 2025 [15], 'SR-11'. 

Should leave be granted?

1. In Latimer v Cutwood Panels Pty Ltd (in liq),[7] Beech J outlined the principles relevant to an application under s 500(2) of the Act for leave to proceed against a company in liquidation. These principles also apply to applications brought under s 471B of the Act. Relevantly, as his Honour noted:[8]

   The discretion to grant or refuse leave is broad.  It is not possible or appropriate to attempt to state exhaustively the relevant considerations.  Among the relevant considerations are the amount, seriousness, and nature of the claim; the degree of complexity and legal factual issues; and the stage the proceedings have reached.

   [7] Latimer v Cutwood Panels Pty Ltd (in liq) [2012] WASC 408 [6] - [14] ('Latimer').

   [8] Latimer [9].

2. In considering whether or not to grant the leave sought:

   (a)the plaintiff must show there is a serious question to be tried in relation to the claim; and

   (b)the court will consider whether there is any prospect of the company being able to meet any part of any possible damages award.  Where there is an insurer standing behind the company that will pay any amount of a judgment awarded, this will be a factor strongly in favour of granting leave. 

3. In determining the originating process, I have weighed in the balance the nature of the plaintiff's claim, its seriousness, and the status of the defendant as a company under liquidation.

4. Having regard to the affidavit material before me, I am satisfied that the plaintiff has demonstrated that there is a serious question to be tried in relation to his claim, which is a significant damages claim for personal injuries.  There is evidence that the injury is above the threshold in Western Australia for the commencement of common law proceedings.  While a liquidator was appointed to the defendant prior to the commencement of any claim, there is evidence that, if leave is granted, an insurer will respond to the claim. 

5. The plaintiff proposes a form of order that would provide a safety net for the Company and its creditors more broadly.  In particular, order 2 of the plaintiff's originating process contemplates that the plaintiff will not be permitted to enforce any judgment that is ultimately obtained against the defendant without leave of this court.  It is envisaged that, upon enforcement, the court can revisit the matter of insurance and whether the insurer will, as a matter of fact, meet any judgment sum.

6. Given these matters, in all of the circumstances of this case, I am satisfied that it is appropriate to make the orders sought by the plaintiff in his originating process.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KC

Associate to the Honourable Justice Hill

6 MAY 2025