Boral Resources (NSW) Pty Ltd v Urban 8 Constructions Pty Ltd

[2011] NSWSC 217

Supreme Court

New South Wales

Medium Neutral Citation:	Boral Resources (NSW) Pty Ltd v Urban 8 Constructions Pty Ltd [2011] NSWSC 217
Hearing dates:	28 March 2011
Decision date:	28 March 2011
Before:	Barrett J
Decision:	Winding up order set aside
Catchwords:	CORPORATIONS - winding up - winding up order made in the defendant's absence - where plaintiff's representative had told officer of defendant that the matter was listed at 9.15am when the listing was at 9.00am - where originating process stated venue at Supreme Court Queens Square but matter in fact heard at a courtroom in a building in Macquarie Street - standing of applicant for order setting aside winding up order doubtful - but court should of its own motion set the order aside to preserve the integrity of its proceedings
Legislation Cited:	Corporations Act 2001 (Cth), s 471A Uniform Civil Procedure Rules 2005, r 36.16
Cases Cited:	Binetter v Deputy Commissioner of Taxation [2011] FCA 184 Workers Compensation Nominal Insurer v Detailed Flooring Pty Ltd [2010] NSWSC 1056; (2010) 80 ACSR 1
Texts Cited:	Keith Mason, "The Inherent Jurisdiction of the Court" (1983) 57 ALJ 449
Category:	Interlocutory applications
Parties:	Boral Resources (NSW) Pty Ltd - plaintiff Urban 8 Constructions Pty Ltd - defendant Scott Matheson - applicant
Representation:	Counsel: Mr E Oliveri - plaintiff In person - applicant Solicitors: Oliveri Lawyers - plaintiff In person - applicant
File Number(s):	2010/410952

Judgment

1. I have today made an order setting aside orders made by the registrar on 22 February 2011, being a winding up order in respect of Urban 8 Constructions Pty Ltd, an order appointing a liquidator of that company and a related costs order. These are my reasons for having done so.

1. The orders of 22 February 2011 were made in the absence of the defendant and in circumstances related in the affidavit of its principal, Mr Matheson.

1. The plaintiff's originating process was filed on 10 December 2010 and later duly served. It included the following statement:

"This application will be heard by the Supreme Court of New South Wales at Law Courts Building, Queens Square, Sydney at 9.00am on 22.2.2011."

1. Mr Matheson went to the Law Courts Building in Queens Square on 22 February 2011. He had received an email from a representative of the plaintiff on 9 February 2011 which read in part as follows:

"As you are aware, the hearing date is set for 22 February at 9.15am in the Supreme Court."

1. On arriving at the Law Courts Building in Queens Square, Mr Matheson consulted a directory on display and saw a reference to the winding up proceedings being listed for hearing on Level 11. He went to Level 11 of the Queens Square Building. He discovered that the relevant hearing was not on that floor.

1. Mr Matheson then went back to the ground floor and made an inquiry of a court official. He was told that the hearing had, in his words, "been changed to another court in 225 Macquarie Street at the Land and Environment Court".

1. Mr Matheson then left the Queens Square Building and walked to 225 Macquarie Street where he located a lady who, according to him, "said she was a barrister for Boral Resources (NSW) P/L" and told him "it was too late to attend and the registrar had made orders that Urban 8 Constructions had been wound up".

1. It is clear that Mr Matheson intended to seek leave to represent the company on the hearing of the winding up application. There can be no doubt that the registrar would at least have entertained such an application. Mr Matheson was unable to make the application because the hearing had concluded and orders had been made before he arrived. This was in circumstances where:

(a)   a representative of the plaintiff had told Mr Matheson that the matter was to be before the court at 9.15am on the day in question but the correct time was 9.00, as stated in the originating process served by the plaintiff;

(b)   the originating process also stated that the application would be heard at the Supreme Court, Queens Square, Sydney;

(c)   the application was in fact heard not at the Queens Square address but in a courtroom in a quite separate building at 225 Macquarie Street;

(d)   Mr Matheson spent some time at the Queens Square building searching for the relevant courtroom;

(e)   it was only after he had spent that time and then made inquiries of a court official on the ground floor of the Queens Square building that he learned that the hearing was to take place at the separate building in Macquarie Street, not at the address shown in the originating process; and

(f)   Mr Matheson then had to walk to the Macquarie Street building - a distance of about 200 metres from the only currently operational street door of the Queens Square building, located on its King Street frontage - and negotiate the lifts at the Macquarie Street building on his arrival there.

1. For reasons which I recently canvassed in Workers Compensation Nominal Insurer v Detailed Flooring Pty Ltd [2010] NSWSC 1056; (2010) 80 ACSR 1 at [19] to [26], the court will exercise its power under rule 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 only if some factor beyond the mere absence of the affected party makes it unjust for the order in question to stand.

1. The circumstances to which I have referred made it unjust that the orders of 22 February 2011 should stand. Mr Matheson's lateness was caused by a combination of the wrong information about the time of the hearing given to him by the plaintiff's representative in the email of 9 September 2010 and the court's having, first, accepted and sealed an originating process stating that the matter would be heard at the Queens Square building and, second, caused the hearing to be conducted instead in the quite separate building at 225 Macquarie Street. Had Mr Matheson not been misled in these two important respects, he might well have succeeded in making his application for leave to represent the defendant at the hearing.

1. The proper course was that matters be returned to the state in which they stood before the orders of 22 February 2011 were made and that the winding up application should come before the registrar anew.

1. I should add that the matter of setting aside the winding up and related orders was raised by way of interlocutory process filed on 22 September 2011 and thus within the time contemplated by rule 36.16(3A).

1. It may be that, in light of s 471A of the Corporations Act 2001 (Cth), Mr Matheson could not have acted act for the company in seeking to have the orders of 22 February 2011 set aside, although I note, in that connection, the obiter observations of Perram J in Binetter v Deputy Commissioner of Taxation [2011] FCA 184 at [11].

1. It seemed to me, however, that the particular circumstances of this case (including the circumstance that the court itself caused the hearing to occur otherwise than at the venue stated in the originating process bearing the court's seal) justified resort, of the court's own motion, to the inherent jurisdiction that the court has to preserve the integrity of its proceedings by setting aside an order obtained when a party's absence was due to no fault of the party: see Keith Mason, "The Inherent Jurisdiction of the Court" (1983) 57 ALJ 449 at 450. That jurisdiction is not affected by anything in rule 36.16: see rule 36.16(4).

1. It was for these reasons that I ordered that the orders of 22 February 2011 be set aside and directed that the originating process be listed before the registrar at 9.00am on Monday next.

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