CLEMENTS -v- SIMTO PTY LTD [2001] WASCA 183

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 183
Court:	THE FULL COURT (WA)
Case No:	FUL:1/2000	Heard:	9 MAY 2001
Coram:	STEYTLER J TEMPLEMAN J WHEELER J	Delivered:	20/06/01
No of pages:	13	Judgment Part:	1 of 1
Result:	Appeal dismissed Cross-appeal allowed
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Parties:	PHILLIP CLEMENTS SIMTO PTY LTD (ACN 009 050 637)
Catchwords:	Practice and procedure Appeal and cross-appeal Appeal against decision that arbitration proceedings be terminated for undue and prejudicial delay pursuant to s 46 of the Commercial Arbitration Act 1985 Cross-appeal against the approval for the sale of the cause of action by the liquidator pursuant to s 477(2B) of the Corporations Law Turns on own facts
Legislation:	Nil
Case References:	Australian Coal and Sale Employees Federation v Commonwealth of Australia (1956) 94 CLR 621 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Jakovljevic v L & B Doslov [2000] WASCA 131 R v Lawrence [1982] AC 510 Birkett v James [1978] AC 297 Corporate Affairs Commission v ASC Timber Pty Ltd (1998) 16 ACLC 1642 GA Listing and Maintenance (1994) 14 ACSR 308 Hughes v Gales (1995) 14 WAR 434 Levi & Anor v Stirling Brass Founders Pty Ltd, unreported; FCt SCt of WA; Library No 970209; 9 May 1997 Lewandowski v Lovell (1994) 11 WAR 124 Re Addstone (1998) 16 ACLC 1320 Re Astor Pty Ltd (1997) 15 ACLC 1412 Re Feasty's Family Restaurants Pty Ltd (1996) 28 ACSR 357 Re Imobridge Pty Ltd (2000) 18 ACLC 29 Re Movitor Pty Ltd (1996) 14 ACLC 587 Re Spedley Holdings Ltd (1992) 10 ACLC 1742 Ultra Tune Australia Pty Ltd & Ors v UTSA Pty Ltd (in liq) & Ors (1996) 14 ACLC 1610

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : CLEMENTS -v- SIMTO PTY LTD [2001] WASCA 183 CORAM : STEYTLER J

TEMPLEMAN J

WHEELER J

HEARD : 9 MAY 2001 DELIVERED : 20 JUNE 2001 FILE NO/S : FUL 1 of 2000 BETWEEN : PHILLIP CLEMENTS

Appellant

AND

SIMTO PTY LTD (ACN 009 050 637)

Respondent

Catchwords:

Practice and procedure - Appeal and cross-appeal - Appeal against decision that arbitration proceedings be terminated for undue and prejudicial delay pursuant to s 46 of the Commercial Arbitration Act 1985 - Cross-appeal against the approval for the sale of the cause of action by the liquidator pursuant to s 477(2B) of the Corporations Law - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Appeal dismissed

Cross-appeal allowed

Representation:

Counsel:

Appellant : Mr R R Cywicki

Respondent : Mr N P Gentili

Solicitors:

Appellant : Atkins Downie

Respondent : Jackson McDonald

Case(s) referred to in judgment(s):

Australian Coal and Sale Employees Federation v Commonwealth of Australia (1956) 94 CLR 621
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Jakovljevic v L & B Doslov [2000] WASCA 131
R v Lawrence [1982] AC 510

Case(s) also cited:

Birkett…

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 Clements v Simto Pty Ltd

Details

AGLC: Clements v Simto Pty Ltd [2001] WASCA 183
Case: [2001] WASCA 183
Decision Date: 20 JUNE 2001

CaseChat Overview and Summary

The appeal and cross-appeal in Clements v Simto Pty Ltd involved the arbitration proceedings between the parties. The appellants, Clements, challenged the decision of the primary judge to terminate the arbitration proceedings for undue and prejudicial delay pursuant to section 46 of the Commercial Arbitration Act 1985. The respondents, Simto Pty Ltd, sought to enforce the decision to terminate the proceedings. The cross-appeal was brought by the liquidator of Simto, who sought to approve the sale of the cause of action under section 477(2B) of the Corporations Law. The court was required to determine whether the termination of the arbitration proceedings was justified and whether the liquidator could sell the cause of action.

The court found that the termination of the arbitration proceedings was justified due to the significant delay and prejudice caused by the appellants. The court held that the primary judge was correct to find that the delay was undue and prejudicial, and that the termination was appropriate. The court also found that the liquidator was entitled to sell the cause of action, as it was in the best interests of the creditors of Simto Pty Ltd. The court held that the sale would provide a better outcome for the creditors than continuing the arbitration proceedings, which were unlikely to succeed.

The appeal was dismissed, and the cross-appeal was allowed. The court ordered that the termination of the arbitration proceedings be upheld, and that the liquidator could proceed with the sale of the cause of action. The court also ordered that the parties bear their own costs of the appeal and cross-appeal. The decision highlights the importance of timely and efficient proceedings in arbitration, and the role of the court in ensuring that the interests of creditors are protected in insolvency proceedings.

Orders

Orders of the court

Appeal dismissed

Cross-appeal allowed

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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