Beach Petroleum Nl v Cortaus Ltd

[1995] FCA 1100

CATCHWORDS

CORPORATIONS - application pursuant to O 35 r 7(2) of the Federal Court Rules to set aside order after order entered - whether order authorised by s 581(4) of the Corporations Law - nature of "external administration matter" - distinction between actions of a liquidator in capacity as such under the Corporations Law and actions of a liquidator on behalf of the company.

PRACTICE AND PROCEDURE - whether applicant has standing - whether O 71 r 10 of the Federal Court Rules an exhaustive statement of non-parties who may be heard on Corporations Law matters.

Corporations Law ss 477(2)(a), 580 and 581(4)
Federal Court Rules O 35 r 7(2), O 71 r 10

The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55

No SG 3046 of 1994

BEACH PETROLEUM NL (ACN 007 617 969)  v CORTAUS LTD (ACN 008 965 124)

Branson J
Adelaide
19 December 1995

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY  )    No SG 3046 of 1994
  )
GENERAL DIVISION                 )

BETWEEN:

BEACH PETROLEUM NL
  (ACN 007 617 969)

Applicant

- and -

CORTAUS LTD
  (ACN 008 965 124)

Respondent

MINUTES OF ORDER

CORAM:    Branson J
PLACE:    Adelaide
DATE:     19 December 1995

THE COURT ORDERS THAT:

1. The notice of motion dated 18 December 1995 be dismissed.

1. There be no order as to costs.

Note:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY  )    No SG 3046 of 1994
  )
GENERAL DIVISION                 )

BETWEEN:

BEACH PETROLEUM NL
  (ACN 007 617 969)

Applicant

- and -

CORTAUS LTD
  (ACN 008 965 124)

Respondent

EXTEMPORE REASONS FOR DECISION

CORAM:    Branson J
PLACE:    Adelaide
DATE:     19 December 1995

The application that was made to the Court this afternoon deserved far greater time for consideration than I have been able to give it.  I have had little more than half an hour to read the affidavit material referred to and the authorities and to consider the submissions of counsel.  However, the urgency of the matter compels me to give a decision now.

The applicant is the fourth respondent in proceedings SG 111 of 1993.  He has applied by notice of motion in these proceedings, SG 3046 of 1994, principally for an order pursuant to O35 r7(2) of the Federal Court Rules that order 2 of orders made by O'Loughlin J on 1 June 1995, and entered on

7 June 1995, be set aside.

The standing of the applicant to make this application is challenged.  The applicant, a Mr Joye, is not a party in these proceedings and is not a person who falls within the classes identified in O71 r10 of the Federal Court Rules.  No application was made by Mr Joye to be made a party in these proceedings.

I have had no opportunity to research this area of the law.  Unassisted by any reference to authorities, I am not prepared to treat O71 r10 as an exhaustive statement of the persons who may be heard in Corporation Law matters.  It is plain that the application to O'Loughlin J for the orders made by him was made on the basis that a purpose of the order sought was to assist the liquidator of Cortaus Limited (Receiver & Manager Appointed) (in Liquidation) ("Cortaus") in the conduct of Cortaus Limited (Receiver & Manager Appointed) (In Liquidation) v Larkin Limited & Ors (SG 111 of 1993) (the "Cortaus v Larkin" proceedings).  The applicant before me is a respondent to such proceedings and as such has a real interest in the orders made by O'Loughlin J.  I am prepared to  hear him on his application to set aside the order of O'Loughlin J.

The issue to be determined on this application is whether s581(4) of the Corporations Law authorises the making of the order of O'Loughlin J. That is, whether the letters of request which his Honour ordered to be sent to the Supreme Court of Hong Kong requested that court to act in aid of and be ancillary to this court in an "external administration matter".

An "external administration matter" is defined by s580 of the Corporations Law. For present purposes it means a matter relating to winding up, under Chapter 5 of the Corporations Law, a company. The expression "relating to" is in my view a wide expression.  An illustration of this can be found in the well known case The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55.

I accept the submission of Mr Bennett QC, who with Mr Jackman appeared for the applicant on the notice of motion, that there is a clear distinction between actions of a liquidator in his or her capacity as such under the Corporations Law and actions of a liquidator on behalf of the company being things which could have been done by the company even if there were no liquidation.

Mr Sheehan, the liquidator of Cortaus, by his affidavit of 12 May 1995 swore that the documents sought by the letter of request are important to him in his administration of Cortaus in winding up for a number of reasons.  It is true that such reasons relate principally, although not exclusively, to the Cortaus v Larkin proceedings. Such proceedings, I accept, are proceedings which could have been instituted by Cortaus even were it not in liquidation. However, in the events which have happened, the liquidator has caused such proceedings to be commenced in the name of Cortaus as applicant pursuant to his powers under s477(2)(a) of the Corporations Law. The institution of such proceedings by Mr Sheehan in the name of the company, and his subsequent decisions as to the conduct of such proceedings, are, in my view, matters relating to the winding up of Cortaus under Chapter 5 of the Corporations Law.

Moreover, Mr Sheehan asserts in his affidavit that the documents sought by the letter of request are relevant to his proposed examination of Mr Joye.  It is true that the service of the summons for the examination of Mr Joye is under challenge.  Nevertheless, the summons has been issued and I do not understand there to be any challenge to the propriety of the issue of the summons.  In my view it is proper for Mr Sheehan to prepare himself for the cross-examination of Mr Joye pursuant to such summons should the validity of its service be upheld or, alternatively, should it subsequently be served in a manner which is uncontentious.  In my view the preparation for such examination is a matter relating to the winding up of Cortaus.

I decline to make any of the orders sought by the notice of motion of 18 December 1995.

I certify that this and the preceding      pages are a true copy of the Extempore Reasons for Decision of the Honourable Justice Branson.

Associate:
  Dated:

Counsel for the applicant         :    Mr D M J Bennett QC
     on the notice of motion           with him
  Mr I M Jackman

Solicitors for the applicant      :    Cowell Clarke

on the notice of motion           as agents for
  Speed & Stracey

Counsel for the respondent        :    Mr J R Sulan QC
     on the notice of motion           with him
  Mr R J Mills

Solicitors for the respondent     :    Piper Alderman
     on the notice of motion

Hearing Date  :    19 December 1995