Bitar Pty Ltd v Hebbel Constructions Pty Ltd

[2019] NSWCA 38

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 assets

Legislation 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, 51.10

Cases 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 369

Category:

Principal judgment

Parties:

Bitar Pty Limited (Applicant)
Hebbel Constructions Pty Limited (First Respondent)
Daniel Frisken (Second Respondent)

Representation:

Counsel:
P. E. King (Applicant)
P. Wiggins (Solicitor) (First Respondent)
S. Golledge (Second Respondent)

  Solicitors:
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

1. 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).

2. As the orders sought to be challenged…