Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Bitar Pty Ltd v Hebbel Constructions Pty Ltd [2019] NSWCA 38 Hearing dates: 20 February 2019 Date of orders: 20 February 2019 Decision date: 05 March 2019 Before: Gleeson JA at [1]
McCallum JA at [47]Decision: (1) Extend the time for the service of the summons seeking leave to appeal to 27 August 2018.
(2) Summons seeking leave to appeal dismissed with costs.
(3) Applicant to pay the Receiver’s costs of and incidental to the application for leave to appeal on an indemnity basis.Catchwords: APPEAL – Leave to appeal from interlocutory decision not to discharge court appointed receiver – Where complaints of delay by the receiver – Whether error of principle in approach to removal of receiver – Whether manifest injustice in refusing to remove the receiver – Where futility of an appeal given receivership almost complete – Where other remedies available
CORPORATIONS – Receivers and managers – Appointment by court – Application for removal of receiver – Conduct of receivership – Powers – Where receiver makes commercial judgments as to timing and staging of sale of assetsLegislation Cited: Home Building Act 1989 (NSW)
Supreme Court Act 1970 (NSW), s 101(2)(e)
Uniform Civil Procedure Rules 2005 (NSW), rr 26.6, 51.4, 51.10Cases Cited: ACN 151 726 224 Pty Ltd (in liq) formerly Ridley Capital Holdings Pty Ltd [2016] NSWSC 1801
Domino Hire Pty Ltd v Pioneer Park Pty Ltd [2003] NSWSC 496
House v The King (1936) 55 CLR 499; [1936] HCA 40
MLW Investments Pty Ltd v Tacsum Pty Ltd [2006] NSWSC 1256
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55]; [2007] NSWCA 369Category: Principal judgment Parties: Bitar Pty Limited (Applicant)
Hebbel Constructions Pty Limited (First Respondent)
Daniel Frisken (Second Respondent)Representation: Counsel:
Solicitors:
P. E. King (Applicant)
P. Wiggins (Solicitor) (First Respondent)
S. Golledge (Second Respondent)
Priest Legal (Applicant)
Paramonte Legal (First Respondent)
Yates Beaggi Lawyers (Second Respondent)
File Number(s): 2018/192212 Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Equity Division
- Citation:
- [2018] NSWSC 758
- Date of Decision:
- 25 May 2018
- Before:
- Black J
- File Number(s):
- 2014/269117
Judgment
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GLEESON JA: The applicant, Bitar Pty Limited (Bitar), seeks leave to appeal against a decision of a judge of the Equity Division made on 25 May 2018 and orders made on 8 June 2018 dismissing an application by Bitar to discharge a receiver appointed by the Court over the assets of a partnership which had been dissolved: Hebbel Constructions Pty Limited v Bitar Pty Limited [2018] NSWSC 758 (the Principal Judgment). Bitar also seeks leave to appeal against orders made on 19 June 2018 dismissing Bitar’s application to invoke the liberty to apply granted on 8 June 2018: Hebbel Constructions Pty Limited v Bitar Pty Limited [2018] NSWSC 1089 (the Ancillary Judgment).
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As the orders sought to be challenged…
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- AGLC
- Bitar Pty Ltd v Hebbel Constructions Pty Ltd [2019] NSWCA 38
- Case
- [2019] NSWCA 38
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the primary judge had erred in principle in their approach to the removal of a court-appointed receiver, and whether there was manifest injustice in refusing to remove the receiver. The Court also considered the futility of an appeal given the receivership was nearing completion and whether alternative remedies were available to the applicant.
Gleeson and McCallum JJA found that the primary judge had not erred in principle. Their Honours noted that the receiver had made commercial judgments regarding the timing and staging of the sale of assets, which was within its powers. The Court considered that the receivership was substantially complete, rendering an appeal largely futile, and that other avenues for addressing the applicant's grievances were available.
Consequently, the Court of Appeal extended the time for service of the summons seeking leave to appeal, but ultimately dismissed the summons seeking leave to appeal with costs. The applicant was also ordered to pay the Receiver's costs of and incidental to the application for leave to appeal on an indemnity basis.
Orders
Orders of the court
(1) Extend the time for the service of the summons seeking leave to appeal to 27 August 2018.
(2) Summons seeking leave to appeal dismissed with costs.
(3) Applicant to pay the Receiver’s costs of and incidental to the application for leave to appeal on an indemnity basis.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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