Birallee Centre Pty Ltd v Gateway Directions Pty Ltd

[1996] FCA 1077

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No NG 3637 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:

BIRALLEE CENTRE PTY LTD

Applicant

- and -

GATEWAY DIRECTIONS PTY LTD

Respondent

EX TEMPORE REASONS FOR DECISION

CORAM:    Branson J
PLACE:    Sydney
DATE:     22 November 1996

I propose not to allow the application made orally this morning for leave to amend the application currently before the Court.  The proposed amendment seeks to raise a fresh ground upon which the application should be set aside which is wholly formal in nature.

This matter is concerned with a statutory demand dated 10 October 1995. The application to set aside the statutory demand came before Registrar Quinn and her decision in this matter was given on 28 June 1996. Section 459G of the Corporations Law provides a 21 day time limit for an application to set aside a statutory demand served on a company. The application to raise a fresh ground to set aside the statutory demand has been made this morning upon the application to review the decision of the Registrar coming on for hearing. That is, it is made over a year after the service of the statutory demand, and at a time after the application to set aside the statutory demand has been heard and determined by a Registrar of this Court.

Notice to the respondent of the application to amend was given only this morning.  If the amendment were to be allowed, either this matter would have to be adjourned to allow the respondent to prepare argument in opposition to the fresh ground sought to be raised by the amended application, or alternatively the respondent would be required to put its submissions in respect to such ground in writing, although the applicant will have the opportunity to address the court orally.  The alternative suggested by counsel for the applicant that neither counsel address orally on such ground seems to me to be unattractive in that it may limit the assistance the Court can obtain from counsel.

In all of the circumstances it appears to me to be appropriate for the application to be refused not only by reason of its lateness having regard to the intention of the Corporations Law that matters of this kind be raised promptly, but also because fairness to the respondent would require that this application be part heard only today or alternatively adjourned to give equal opportunity to both sides to put their respective cases to the Court. It is not clear when an
alternative date for hearing can be made available.

The oral application for leave to amend the application is dismissed.

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

Associate:

Dated:

Counsel for the Applicant        :    Mr P. Walsh
Solicitors for the Applicant     :    Blackshaw Lindsay &   LePage

Counsel for the Respondent       :    Mr J. Nolan
Solicitors for the Respondent        :    Webeck Farland Pender

Hearing Date  :    22 November 1996