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Chalker v Clark

Chalker v Clark

Case [2008] VSCA 92 16 May 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 8256 of 2005

JOHN LEONARD CHALKER
JOHN LEONARD CHALKER	Appellant
v GRAHAM JOHN CLARK and AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION	Respondents
and
BARWON COAST MANAGEMENT COMMITTEE INCORPORATED AND THE STATE OF VICTORIA	Interested Parties

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JUDGES:	MAXWELL P, DODDS-STREETON JA and OSBORN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 May 2008
DATE OF JUDGMENT:	16 May 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 92

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CORPORATION – Application to reinstate company on register – Purpose of application to enable applicant to seek assignment of asserted cause of action – Application futile in face of position of secured creditor – Application highly speculative – Proposed cause of action statute barred – Discretion of trial judge not shown to be improperly exercised – Costs –
s 60AH(2) Corporations Act2001 (Cth), Pilarinos & Ors v ASIC [2006] VSC 301.

PRACTICE AND PROCEDURE – Costs – Interested parties granted leave to intervene as contradictors – Whether costs should be awarded where opposition to appeal successful.

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APPEARANCES:	Counsel	Solicitors
For the Appellant/Plaintiff	Mr G J Herbert	VM Roccisano
For the Interested Parties	Mr M R Scott	TressCox Lawyers
There were no appearances for the Respondents.

MAXWELL P:

Before I invite Osborn AJA to deliver the first judgment, I want to explain for the benefit of your client, Mr Herbert, how it comes about that we are able to dispose of the case in the same morning as it has been argued.

You would be aware, Mr Chalker, that your lawyers and the respondents’ lawyers have given us in advance detailed written argument. That has enabled us, as we do in every case, to read and think about it in some detail before we come into court. We come into Court with an open mind, but having had a chance to understand the way the issues are formulated and to form provisional views on the strength of the competing arguments. We have had invaluable assistance from your barrister in clarifying, explaining and developing the argument, which we are already quite familiar with having read the written material and the judgment of the court below. The decision we have arrived at is based on the combined written and oral argument.

OSBORN AJA:

This is an appeal with respect to the decision made by Whelan J rejecting the appellant's application for an order in proceeding 8256 of 2006, pursuant to s601AH(2) of the Corporations Act 2001 (Cth) (the “Act”), requiring the second respondent to restore Chalky's in the Dunes Pty Ltd to the register.[1] By the same decision his Honour also rejected an application for an order in another proceeding, 6131 of 2006, brought under ss 511 and 1322 of the Act, that a meeting of the creditors and contributories of the company held on 17 August 2002, and the proceedings of that meeting, are void by reason of the fact that the meeting, which was the final meeting of creditors and members pursuant to s 509 of the Act,…

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.

Continue reading Chalker v Clark

Details

AGLC: Chalker v Clark [2008] VSCA 92
Case: [2008] VSCA 92
Decision Date: 16 May 2008

CaseChat Overview and Summary

In the case of Chalker v Clark, the applicant, Chalker, sought to have the company reinstated on the register, in order to pursue a cause of action against the respondents, Clark and others. The application was filed in the Supreme Court of Victoria. The respondents opposed the application, asserting that it was futile due to the presence of a secured creditor and that the proposed cause of action was statute-barred. The court was required to determine whether the application to reinstate the company was justified and whether the proposed cause of action could proceed.

The court examined the application to reinstate the company under section 60AH(2) of the Corporations Act 2001 (Cth). It considered whether the application was futile due to the presence of a secured creditor and whether the proposed cause of action was statute-barred. The court also assessed whether the trial judge's discretion was improperly exercised and whether costs should be awarded to the respondents, who had successfully opposed the appeal. The court found that the application was futile in light of the secured creditor's position and that the proposed cause of action was statute-barred. The court concluded that the trial judge's discretion was not improperly exercised and that costs should be awarded to the respondents.

The court dismissed the appeal and ordered that costs be paid by the applicant to the respondents. The court found that the application to reinstate the company was speculative and that the proposed cause of action was statute-barred. The court also found that the trial judge's discretion was not improperly exercised and that costs should be awarded to the respondents, who had successfully opposed the appeal. The final orders of the court were that the appeal be dismissed and that costs be paid by the applicant to the respondents.

Orders