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Carpenter v Pioneer Park Pty Ltd

Carpenter v Pioneer Park Pty Ltd

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Case Copied 5 June 2008 39 min read

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Reported Decision:
66 ACSR 564

New South Wales

Supreme Court

CITATION: Carpenter v Pioneer Park Pty Ltd [2008] NSWSC 551

HEARING DATE(S): 13/03/08, 16/04/08
Written submissions: 13/03/08, 23/04/08, 05/05/08

JUDGMENT DATE :
5 June 2008

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Interlocutory process dismissed with costs

CATCHWORDS: CORPORATIONS - winding up - company in liquidation - leave previously granted to member under Part 2F.1A of Corporations Act and court's inherent jurisdiction to bring proceedings on behalf of company - those proceedings prosecuted to conclusion - judgment against company - member wishes to pursue appeal on behalf of company - whether existing leave extends to appeal - whether new grant of leave should be made - supervening Court of Appeal decision that Part 2F.1A not available where company in liquidation - application for new grant of leave pursued on basis of inherent jurisdiction only - relevant criteria discussed - assessment of case against those criteria - criteria not met - leave refused

LEGISLATION CITED: Corporations Act 2001 (Cth). Part 2F.1A, ss 236, 237, 447(6), 511(1) 1321
Uniform Civil Procedure Rules 2005, Part 51

CATEGORY: Principal judgment

CASES CITED: Ahern v Deputy Commissioner of Taxation (1987) 76 ALR 137
Aliprandi v Griffith Vintners Pty Ltd (1991) 6 ACSR 250
Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58
Australia and New Zealand Banking Group Ltd v Carpenter [2007] FMCA 1589
Australian Securities Commission v Ampolex Ltd (1995) 38 NSWLR 504
Cape Breton Company v Fenn (1881) 17 ChD 198
Carpenter v Pioneer Park Pty Ltd [2004] NSWSC 1007; (2004) 51 ACSR 299
Chahwan v Euphoric Pty Ltd [2008] NSWCA 52; (2008) 65 ACSR 661
Gahahan Pty Ltd v Advance Bank of Australia Ltd [2001] ACTSC 118
Hayim v Citibank NA [1987] AC 730
Hilliard v Eiffe (1874) LR 7 HL 39
Lloyd-Owen v Bull [1936] 4 DLR 273
Partnership Pacific Ltd v Aliprandi (1990) 4 ACSR 51
Pioneer Park Pty Ltd v Australia and New Zealand Banking Group Ltd [2006] NSWSC 883
Pioneer Park Pty Ltd v Australia and New Zealand Banking Group Ltd [2006] NSWSC 1176
Pioneer Park Pty Ltd v Australia and New Zealand Banking Group Ltd [2007] NSWCA 344 (30 November 2007); (2007) 65 ACSR 383
Ragless v IPA Holdings Pty Ltd (2008) SASC 90; (2008) 65 ACSR 700
Ramage v Waclaw (1988) 12 NSWLR 84
Re Bank of Gibraltar and Malta (1865) LR 1 Ch App 69
Re Imperial Bank of China India and Japan (1866) LR 1 Ch App 339
Russell v Westpac Banking Corporation (1994) 13 ACSR 5
Scarel Pty Ltd v City Loan & Credit Corporation Pty Ltd (unreported, NSWSC, 10 December 1987)
Scarel Pty Ltd v City Loan & Credit Corp Pty Ltd (1988) 17 FCR 344
Sharpe v San Paulo Railway Co (1873) LR 8 Ch App 597
Vouris as liquidator of Cadima Express Pty Ltd v Deputy Commissioner of Taxation [1999] NSWSC 1143; (1999) 33 ACSR 527

PARTIES: Clifford John…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWSC 551
Decision Date: 5 June 2008

CaseChat Overview and Summary

The case of Carpenter v Pioneer Park Pty Ltd involved a member of a company in liquidation seeking to pursue an appeal on behalf of the company. The proceedings had initially been brought under Part 2F.1A of the Corporations Act, which allows a member to bring proceedings on behalf of the company under certain circumstances. The court had granted leave for the proceedings to be brought and subsequently entered judgment against the company. The member now wished to appeal this judgment, but the company was in liquidation, and there was a Court of Appeal decision indicating that Part 2F.1A was not available in such circumstances. The member applied for a new grant of leave to appeal on the basis of the court's inherent jurisdiction.

The primary legal issues before the court were whether the existing leave granted under Part 2F.1A extended to include the right to appeal, and if not, whether a new grant of leave should be made under the court's inherent jurisdiction. The member argued that the leave should extend to an appeal, while the liquidator opposed the application on the basis that the company was now in liquidation and the Court of Appeal had held that Part 2F.1A did not apply in such circumstances. The court had to consider the criteria for granting leave under the inherent jurisdiction, which included whether it was just and convenient to grant the leave and whether the member had acted promptly.

The court considered the relevant criteria and found that the member had not met them. The member had not demonstrated that it was just and convenient to grant leave for the appeal, nor had they shown that they acted promptly. The court emphasised that the criteria for granting leave under the inherent jurisdiction were stringent, and the member had not satisfied them. Consequently, the application for leave to appeal was refused. The court did not grant the member leave to pursue the appeal on behalf of the company, finding that the criteria for doing so had not been met.

Orders