Dempsey Resources Pty Ltd v Continental Coal Ltd - [2009] FCA 1157

FEDERAL COURT OF AUSTRALIA
Dempsey Resources Pty Ltd v Continental Coal Ltd [2009] FCA 1157
CORPORATIONS - extension of time for lodging change of details of a charge - s 264(4) Corporations Act 2001 (Cth) - failure due to inadvertence - short delay - remedial steps taken promptly - extension granted.
Corporations Act 2001 (Cth), ss 262(1), 266(3), (4)(a), 268(2)
Hewlett-Packard Australia Pty Ltdv Exceed Pty Ltd (2004) 48 ACSR 670
Investa Properties Ltd v Westpac Property Funds Management Ltd (2001) 40 ACSR 124
National Australia Bank Ltd v David & Waddell (Vic)Pty Ltd (2003) 44 ACSR 296
Re Kris Cruisers Ltd [1948] 2 All ER 1105
Sanwa Australia Finance Ltd v Ground-Breakers Pty Ltd (in liq) [1991] 2 Qd R 456
Standard Chartered Finance Ltd v De Barros Nominees Pty Ltd (in liq) (1988) 7 ACLC 15
Vector Capital Ltd v SNS Software Network Systems Pty Ltd (1988) 12 NSWLR 1
DEMPSEY RESOURCES PTY LTD (ACN 100 305 486), PERPETUAL CORPORATE TRUST LIMITED (ACN 000 341 533) and LINQ FINANCE NO 2 PTY LTD (ACN 134 962 182) v CONTINENTAL COAL LTD (ACN 009 125 651)
WAD 153 of 2009
GILMOUR J
12 OCTOBER 2009
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 153 of 2009

BETWEEN:
DEMPSEY RESOURCES PTY LTD (ACN 100 305 486)
PERPETUAL CORPORATE TRUST LIMITED (ACN 000 341 533)
LINQ FINANCE NO 2 PTY LTD (ACN 134 962 182)
Plaintiffs

AND:
CONTINENTAL COAL LTD (ACN 009 125 651)
Defendant

JUDGE:

GILMOUR J

DATE OF ORDER:

12 OCTOBER 2009

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The period for lodging a notice of change of details of a charge with the Australian Securities and Investments Commission in respect of:
(a)the Increase of Commitment Deed dated 20 April 2009 entered into by the defendant, the first-named plaintiff and the third-named plaintiff be extended to 29 July 2009; and
(b)the Increase of Commitment Deed dated 5 June 2009 entered into by the defendant, the second-named plaintiff and third-named plaintiff be extended to 29 July 2009.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 153 of 2009

BETWEEN:
DEMPSEY RESOURCES PTY LTD (ACN 100 305 486)
PERPETUAL CORPORATE TRUST LIMITED (ACN 000 341 533)
LINQ FINANCE NO 2 PTY LTD (ACN 134 962 182)
Plaintiffs

AND:
CONTINENTAL COAL LTD (ACN 009 125 651)
Defendant

JUDGE:

GILMOUR J

DATE:

12 OCTOBER 2009

PLACE:

PERTH

REASONS FOR JUDGMENT
Relief sought

The plaintiffs’ application is for orders to extend time for the lodging of notices of change of details of a charge in respect of certain charges (Notices) with the Australian Securities and Investments Commission (ASIC).
The Notices pertain to:
(a)the Increase of Commitment Deed dated 20 April 2009 entered into by Continental, Dempsey and LinQ Finance respectively (Dempsey…

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: [2009] FCA 1157
Decision Date: 12 OCTOBER 2009

CaseChat Overview and Summary

Dempsey Resources Pty Ltd v Continental Coal Ltd involved a dispute between the plaintiffs and the defendant regarding the failure to lodge notices of change of details of a charge with the Australian Securities and Investments Commission. The plaintiffs sought an extension of time to lodge these notices as they had inadvertently missed the required deadlines. The case was heard in a court that granted the plaintiffs' application for an extension.

The primary legal issue that the court had to decide was whether the plaintiffs' failure to lodge the notices within the statutory time frame could be excused due to the inadvertent nature of the oversight. The court had to consider whether the plaintiffs had acted diligently and whether there were any extenuating circumstances that warranted an extension of the time limit. Additionally, the court needed to assess the implications of the missed deadlines on the enforceability of the charges and the potential consequences for the parties involved.

In determining the application, the court found that the plaintiffs' failure to lodge the notices was indeed inadvertent. The court took into account the plaintiffs' conduct and concluded that they had acted diligently in attempting to rectify the oversight as soon as it was discovered. The court emphasised the importance of lodging these notices to ensure transparency and compliance with regulatory requirements. However, the court also recognised that inadvertent failures could occur and that the law should accommodate such situations where appropriate. Therefore, the court decided to grant the plaintiffs' application for an extension of time to lodge the notices. This decision balanced the need for compliance with the regulatory regime and the practical realities of the plaintiffs' situation.

The court's orders granted the plaintiffs an extension of time to lodge the notices of change of details of the charges. Specifically, the court extended the period for lodging the notices in relation to the Increase of Commitment Deeds dated 20 April 2009 and 5 June 2009 to 29 July 2009. This extension allowed the plaintiffs to comply with the statutory requirements and avoid potential penalties or legal complications arising from the missed deadlines.

Orders

Orders of the court

1. The period for lodging a notice of change of details of a charge with the Australian Securities and Investments Commission in respect of:

(a) the Increase of Commitment Deed dated 20 April 2009 entered into by the defendant, the first-named plaintiff and the third-named plaintiff be extended to 29 July 2009; and

(b) the Increase of Commitment Deed dated 5 June 2009 entered into by the defendant, the second-named plaintiff and third-named plaintiff be extended to 29 July 2009.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GILMOUR J

The failure in each case to lodge the Notice was inadvertent. Conclusion For these reasons I would make the orders sought in the plaintiffs’ application.

Ratio Decidendi

Legal Principle Established

Established by: GILMOUR J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 153 of 2009

BETWEEN:	DEMPSEY RESOURCES PTY LTD (ACN 100 305 486) PERPETUAL CORPORATE TRUST LIMITED (ACN 000 341 533) LINQ FINANCE NO 2 PTY LTD (ACN 134 962 182) Plaintiffs
AND:	CONTINENTAL COAL LTD (ACN 009 125 651) Defendant

JUDGE:	GILMOUR J
DATE OF ORDER:	12 OCTOBER 2009
WHERE MADE:	PERTH

JUDGE:	GILMOUR J
DATE:	12 OCTOBER 2009
PLACE:	PERTH