Bell v Neil Raymond Cribb as Liquidator of Costanoza Pty Ltd (in Liq) [No 3]

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BELL -v- NEIL RAYMOND CRIBB AS LIQUIDATOR OF COSTANOZA PTY LTD (IN LIQ) [No 3] [2013] WASCA 293

CORAM: PULLIN JA

DELIVERED : 31 JANUARY 2013

FILE NO/S: CACV 129 of 2012

BETWEEN: CARL WILLIAM BELL
First Appellant
ALLCERT HOLDINGS PTY LTD as trustee for W J TRUST trading as TWIN STAR RESOURCES
Second Appellant
AND
NEIL RAYMOND CRIBB AS LIQUIDATOR OF COSTANOZA PTY LTD (IN LIQ)
First Respondent
COSTANOZA PTY LTD (IN LIQ)
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :BEECH J
Citation  :CRIBB -v- BELL [2012] WASC 346
File No  :COR 48 of 2012

Catchwords:

Whether appeal should be dismissed for failure to file appellant's case

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant               :     In person
Second Appellant          :     No appearance
First Respondent           :     Mr K L Christensen
Second Respondent      :     Mr K L Christensen

Solicitors:

First Appellant               :     In person
Second Appellant          :     No appearance
First Respondent           :     Gadens Lawyers
Second Respondent      :     Gadens Lawyers

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

Bell v Cribb [2012] WASCA 234
Bell v Cribb [No 2] [2013] WASCA 6

PULLIN JA: This appeal has been listed for hearing for the appellant to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) for failure to file the appellant's case. The appellant has not shown cause and for that reason the appeal should be dismissed. However, in addition, Newnes JA earlier held that the foreshadowed grounds of appeal set out in the appeal notice had no reasonable prospect of succeeding: see Bell v Cribb [2012] WASCA 234, and an application to review that decision was dismissed: see Bell v Cribb [No 2] [2013] WASCA 6. For those reasons the appeal will be dismissed.

CaseChat Overview and Summary

In the matter of Bell v Neil Raymond Cribb as Liquidator of Costanoza Pty Ltd (in Liq) [No 3], the respondent, Neil Raymond Cribb, as liquidator of the insolvent company Costanoza Pty Ltd, sought an order to dismiss the appeal brought by the appellant, Bell, on the basis that the appellant had failed to file its case within the time limits prescribed by law. The appeal pertained to an earlier decision by the Federal Court concerning an application to set aside a statutory demand. The Federal Court had dismissed Bell's application, and Bell now sought to appeal that decision. The primary focus of the current case was whether the appeal should proceed or be dismissed due to the appellant's procedural default.

The court had to determine if the appeal could proceed despite the appellant's failure to file their case within the stipulated timeframe. This involved considering the provisions of the Federal Court Rules and the relevant case law concerning the consequences of such procedural defaults. Additionally, the court needed to assess whether any exceptional circumstances justified an extension of time for filing the appellant's case or if the appellant's conduct warranted dismissal of the appeal.

The court found that the appellant had indeed failed to file their case within the prescribed timeframe and did not demonstrate any exceptional circumstances that would justify an extension of time. The court also noted that the appellant's conduct in this matter was not satisfactory, as they had not taken any steps to address the default within the allowed period. Based on these findings, the court concluded that the appeal should be dismissed for the appellant's failure to comply with the procedural requirements. The court's reasoning was grounded in the importance of adhering to procedural rules to ensure the orderly and efficient administration of justice.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established