Bitar Pty Ltd v Hebbel Constructions Pty Ltd

Bitar Pty Ltd (the applicant) sought leave to appeal from an interlocutory decision of the primary judge who had refused to discharge a court-appointed receiver, Hebbel Constructions Pty Ltd. The applicant's complaints related to alleged delays by the receiver in conducting the receivership.

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.