Barlow v WA Concreting Pty Ltd (in Liquidation)

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:

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.
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

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

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].
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.
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.
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.
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.
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

The parties involved in this case are Barlow, the applicant, and WA Concreting Pty Ltd (in liquidation), the respondent. The dispute revolves around Barlow's attempt to initiate legal proceedings against WA Concreting, which is currently in liquidation, through an insurance policy. The case was heard in the Supreme Court of Western Australia. The primary legal issues before the court were whether the insurer would respond to the proceedings initiated against the company in liquidation and whether leave should be granted to Barlow to proceed with the claim.

The court considered the legal principles surrounding the right to bring proceedings against a company in liquidation and the obligations of an insurer under a policy. The central issue was whether the insurer, who had issued a policy of insurance to the company, would honour the policy and respond to any proceedings that might be brought against the company during its liquidation. The court also had to determine if Barlow's application for leave to proceed with the claim against the company in liquidation should be granted, given the unique circumstances of the case.

The court ruled that the insurer would respond to the proceedings against the company in liquidation, as the policy terms were clear in this regard. It was also determined that leave should be granted to Barlow to commence proceedings against the company. The court found that the circumstances of this case warranted the granting of leave, given the insurer's obligation to respond to the proceedings and the potential for significant loss to Barlow if the proceedings were not allowed. The court's decision was based on the specific facts of the case and the obligations of the insurer under the policy terms.

The final orders of the court granted Barlow leave to commence proceedings against WA Concreting Pty Ltd (in liquidation) and required the insurer to respond to the proceedings. This decision provides clarity on the obligations of insurers in similar cases and the circumstances in which leave to proceed with claims against companies in liquidation may be granted.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established