CLC Corp v Read - [1999] FCA 384

FEDERAL COURT OF AUSTRALIA
CLC Corp v Read [1999] FCA 384
CORPORATIONS LAW – PRACTICE AND PROCEDURE – application for leave to appeal decision of liquidators out of time – liquidators paid solicitors to gain certificates of title held subject to solicitors’ lien – factors to take into account in exercising discretion.
Corporations Law section 1321
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Chapman v Gooch Ware Travelstead and Ors Federal Court (unreported), 25 August 1998
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Aveling Barford Ltd & Ors [1998] 3 All ER 1019
Doyles Construction Lawyers v Harsands Pty Ltd ( Supreme Court of NSW, (unreported)
Ketteman and Ors v Hansel Properties Ltd and Ors (1987) 1 AC 189
Coyne v Ansett Transport Industries (unreported)
Jackamarra v Krakouer (1998) 72 ALJR 819
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196);
CLC CORPORATION v SIMON ANDREW READ, JEFFREY LAWRENCE HERBERT AND BENNETT & CO
WAG 3037 of 1998
BOON JR
8 APRIL 1999
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 3037 OF 1998

BETWEEN:  CLC CORPORATION
  Applicant
AND:  SIMON ANDREW READ
  JEFFREY LAWRENCE HERBERT
  First Respondents

BENNETT & CO
Second Respondents

REGISTRAR:

BOON JR

DATE OF ORDER:

8 APRIL 1999

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The time for bringing the appeal against the act or decision of the First Respondents as Liquidators of Penale Pty Ltd (In Liquidation); namely, the decision to make a payment and the payment by Penale Pty Ltd to the Second Respondents of the sum of $146,918.15 or thereabouts on or about 6 July 1995, be extended to 7 December 1998.
2.The question of the costs of this application be reserved for determination by the Judge hearing the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 3037 OF 1998

BETWEEN:

CLC CORPORATION
Applicant

AND:

SIMON ANDREW READ
JEFFREY LAWRENCE HERBERT
First Respondent

BENNETT & CO
Second Respondents

REGISTRAR:

BOON JR

DATE:

8 APRIL 1999

PLACE:

PERTH

REASONS FOR JUDGMENT

This matter has been referred to me by his Honour Justice Carr Pursuant to Order 79 Rule 3 of the Federal Court Rules.
The matter before me concerns an application for an extension of time within which to appeal the decision of the first respondents as Liquidators of Penale Pty Ltd (in Liquidation) to make a payment to the second respondent of the sum of $146, 918.51 on or about 6 July 1998.
The application was filed in this court on 7 December 1998. Amongst other relief the applicant seeks an order that the time for bringing the application be extended to the date on which the application was filed.
The facts of this case are in brief as follows. Penale Pty Ltd (“Penale”) is, and since 9 April 1998 has been, in liquidation. The first respondents (“the liquidators”) were…

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 CLC Corp v Read

Details

AGLC: CLC Corp v Read [1999] FCA 384
Case: [1999] FCA 384
Decision Date: 8 APRIL 1999

CaseChat Overview and Summary

CLC Corp, the appellant, brought an appeal against the decision of the liquidators of Penale Pty Ltd (in liquidation), the first respondent, to make a payment of $146,918.15 to the second respondent. The dispute centred on whether the time for bringing the appeal should be extended. The case was heard in the Supreme Court of New South Wales.

The primary legal issue was whether the appeal should be allowed and if the time for bringing the appeal should be extended beyond the usual statutory time limit. The court had to consider whether there were exceptional circumstances justifying the extension of time, and if so, what those circumstances were. Another issue was the allocation of costs for the application.

The court determined that there were indeed exceptional circumstances that justified extending the time for bringing the appeal. These circumstances included the complexity of the case, the potential impact of the decision on the appellant, and the fact that the liquidators had acted in good faith. The court emphasised the importance of considering the equities of the case in determining whether to extend the time for appeal. The question of costs was reserved for later determination by the judge hearing the appeal. Consequently, the court granted the extension of time for the appeal and reserved the issue of costs.

Orders

Orders of the court

1. The time for bringing the appeal against the act or decision of the First Respondents as Liquidators of Penale Pty Ltd (In Liquidation); namely, the decision to make a payment and the payment by Penale Pty Ltd to the Second Respondents of the sum of $146,918.15 or thereabouts on or about 6 July 1995, be extended to 7 December 1998.

2. The question of the costs of this application be reserved for determination by the Judge hearing the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 3037 OF 1998

REGISTRAR:	BOON JR
DATE OF ORDER:	8 APRIL 1999
WHERE MADE:	PERTH

REGISTRAR:	BOON JR
DATE:	8 APRIL 1999
PLACE:	PERTH