Boart Longyear Australia Pty Ltd ACN 000 401 025 v Beavertail Trailers
[2009] FCA 1538
•18 DECEMBER 2009
FEDERAL COURT OF AUSTRALIA
Boart Longyear Australia Pty Ltd ACN 000 401 025 v Beavertail Trailers
Pty Ltd ACN 106 963 786 [2009] FCA 1538BOART LONGYEAR AUSTRALIA PTY LTD ACN 000 401 025 v BEAVERTAIL TRAILERS PTY LTD ACN 106 963 786
SAD 178 of 2009
LANDER J
18 DECEMBER 2009
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 178 of 2009
IN THE MATTER OF BEAVERTAIL TRAILERS PTY LTD ACN 106 963 786
BETWEEN: BOART LONGYEAR AUSTRALIA PTY LTD ACN 000 401 025
PlaintiffAND: BEAVERTAIL TRAILERS PTY LTD ACN 106 963 786
Defendant
JUDGE:
LANDER J
DATE OF ORDER:
18 DECEMBER 2009
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The orders made by the Court on 16 December 2009 be set aside.
2.The application made under s 459P of the Corporations Act 2001 (Cth) be dismissed.
3.There be no order as to costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 178 of 2009
IN THE MATTER OF BEAVERTAIL TRAILERS PTY LTD ACN 106 963 786
BETWEEN: BOART LONGYEAR AUSTRALIA PTY LTD ACN 000 401 025
PlaintiffAND: BEAVERTAIL TRAILERS PTY LTD ACN 106 963 786
Defendant
JUDGE:
LANDER J
DATE:
18 DECEMBER 2009
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
This is an application to set aside orders of the Court made on 16 December 2009 that:
1.Beavertail Trailers Pty Ltd ACN 106 963 786 be wound up in insolvency under the provisions of the Corporations Act 2001.
2.Anthony Christopher Matthews, an official liquidator, be appointed as liquidator of the company.
3.The plaintiff’s costs be fixed at $5727.47 and reimbursed in accordance with sub-section 466(2) of the Corporations Act 2001.
On 12 November 2009 the plaintiff applied pursuant to s 459 of the Corporations Act 2001 (Cth) (Corporations Act) to wind up Beavertail Trailers Pty Ltd (Beavertail) in insolvency. Attached to the originating process was a Statutory Demand for Payment of a Debt (Statutory Demand) in the sum of $9,958.95. Also attached was a judgment entered in the Magistrates Court of South Australia in the same sum.
The applicant was accompanied by an affidavit of Michael Joseph Downey, a director of the plaintiff, sworn on 11 November 2009, who said that the plaintiff relied on the defendant’s failure to comply with a Statutory Demand dated 12 October 2009. His evidence was that the debt had not been paid as at the date of his affidavit. Mr Downey exhibited to his affidavit a search of the records of the Australian Securities and Investment Commission (ASIC) which contained the usual information.
Renae Jane Grant swore an affidavit that the Statutory Demand and a copy of the judgment had been served on Beavertail on 12 October 2009.
The plaintiff’s solicitor, Joshua Richards, swore an affidavit on 13 November 2009 in which he deposed that a rounds clerk in the employ of the plaintiff’s solicitors had served ASIC with a Form 519 Notification of Court Action relating to winding up on 12 November 2009.
On 16 November 2009 the plaintiff filed a consent of Anthony Christopher Mathews to act as liquidator. On 23 November 2009 Renae Jane Grant swore a further affidavit in which she deposed to the service of the originating process and the Consent of the Liquidator on Beavertail. On 24 November 2009 notice of the winding up application was published in The Age. On 16 December 2009 the applicant filed a schedule of costs and disbursements in the sum of $5,727.47.
The orders, including the winding up order, were made on 16 December 2009. The plaintiff had apparently established its entitlement to the orders sought and there was no reason known to the plaintiff or the Court not to make the orders.
After the orders were made and entered the plaintiff conducted a further search at ASIC which showed that on 16 November 2009 the Supreme Court of Queensland made an order winding up Beavertail in insolvency and appointing Nick Combis and Peter Dinoris as liquidators. The plaintiff’s solicitors immediately approached the Court requesting a hearing to move the Court to set aside the orders made on 16 December 2009.
The plaintiff seeks an order setting aside or revoking the orders made by the Court on 16 December 2009. I am told that Mr Mathews supports the application and consents to the orders being made.
Because the orders have already been entered the plaintiff cannot rely on O 35 r 7(1) to have these orders set aside. The plaintiff must rely on O 35 r 7(2) or (3). In my opinion, the plaintiff is entitled to rely on O 35 r 7(2)(f) which provides that the Court may set aside its orders after the orders have been entered where:
(f) the party in whose favour the order was made consents.
The orders were made at the instance of the plaintiff which was unaware that Beavertail at the time of the hearing had already been wound up. The orders made on 16 December 2009 were made in favour of the plaintiff. The plaintiff therefore can obtain the relief it seeks to set aside the orders made on 16 December 2009 by consenting to the orders it now seeks.
Because Beavertail has been wound up, there is no further utility in this proceeding which should be dismissed.
There will be an order that:
1.The orders made by the Court on 16 December 2009 be set aside.
2.The application made under s 459P of the Corporations Act be dismissed.
3.There be no order as to costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 18 December 2009
Counsel for the Plaintiff: Mr J Richards Solicitor for the Plaintiff: Donaldson Walsh Counsel for the Defendant: The Defendant did not appear
Date of Hearing: 18 December 2009 Date of Judgment: 18 December 2009
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