Easey v Grosvenor Constructions (NSW) Pty Ltd - [2005] NSWSC 878

Reported Decision:
54 ACSR 820

New South Wales

Supreme Court

CITATION:
Easey v Grosvenor Constructions (NSW) Pty Ltd [2005] NSWSC 878

HEARING DATE(S): 29/08/05

JUDGMENT DATE :

2 September 2005

JURISDICTION:
Equity Division
Corporations List

JUDGMENT OF:
Barrett J

DECISION:
Leave to proceed granted

CATCHWORDS:
CORPORATIONS - application for leave to proceed against company under deed of company arrangement - claim in negligence sought to be pursued may have been extinguished by the deed - pursuit of claim may nevertheless avail claimant in collateral claim against insurer - whether grant of leave would be futile

LEGISLATION CITED:
Corporations Act 2001 (Cth), ss.444B(6), 444D(1), 444E(3)
Law Reform (Miscellaneous Provisions) Act 1946, s.6

CASES CITED:
Bernardi v London Partners Australia Pty Ltd [2004] QSC 351
Bistritz v Linkjet Holdings Pty Ltd [2001] WASC 67
Brash Holdings Ltd v Katile Pty Ltd [1996] 1 VR 24
Glaister v Banwell Pty Ltd [2003] WASC 101
Josia Pty Ltd v Horvat Constructions Pty Ltd [2004] NSWSC 1252
Kinzett v McCourt (1999) 46 NSWLR 32
Meehan v Stockmans Australian Café (Holdings) Pty Ltd (1996) 22 ACSR 123
MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636
Re QMT Constructions Pty Ltd [2000] 1 QdR 284
Wolstenholme v National Express Group Australia (Swanston Trams) Pty Ltd [2003] VSC 476
Worths Pty Ltd v O'Dal [2000] WASCA 120

PARTIES:
Barry Easey - Plaintiff
Grosvenor Constructions (NSW) Pty Limited - Defendant

FILE NUMBER(S):
SC 3748/05

COUNSEL:
Mr D.P.M. Ash - Plaintiff

SOLICITORS:
Bryden's Law Office - Plaintiff

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

FRIDAY, 2 SEPTEMBER 2005

3748/05 BARRY EASEY v GROSVENOR CONSTRUCTIONS (NSW) PTY LIMITED

JUDGMENT

1 By originating process filed on 30 June 2005, the plaintiff (Mr Easey) seeks leave under s.444E(3) of the Corporations Act 2001 (Cth) to continue certain District Court proceedings against the defendant (which I shall call “Grosvenor”), a company which has executed a deed of company arrangement.

2 In the District Court proceedings, Mr Easey claims damages in respect of personal injuries said to have been suffered by him when he slipped and fell at a shopping centre. The first and second defendants in those proceedings are the shopping centre owners. The third defendant is Grosvenor, which built the shopping centre. Mr Easey alleges against Grosvenor that it was guilty of negligence in the supplying and laying of tiles on the floor of the shopping centre.

3 The District Court proceedings were commenced against Grosvenor by amended statement of claim filed on 31 January 2005. A deed of company arrangement had been executed by Grosvenor on 3 February 2003. Commencement of the proceedings on 31 January 2005 was therefore precluded by s.444E(3) in the absence of the leave of a “Court” within the meaning of the Corporations Act. The present application must therefore be approached as an application nunc pro tunc for leave to commence the proceedings, as well as an application for leave to continue them.

4…

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: [2005] NSWSC 878
Decision Date: 2 September 2005

CaseChat Overview and Summary

The case of Easey v Grosvenor Constructions (NSW) Pty Ltd involved a dispute between the plaintiff, Easey, and the defendant, Grosvenor Constructions (NSW) Pty Ltd. Easey sought to proceed with a claim in negligence against Grosvenor Constructions, but the company was in a deed of company arrangement. The matter was before the Federal Circuit Court, which was required to decide whether Easey should be granted leave to proceed with the claim against Grosvenor Constructions. The central legal issue was whether the potential negligence claim against Grosvenor Constructions had been extinguished by the deed of company arrangement and whether the pursuit of the claim would be futile.

The court considered that the deed of company arrangement may have extinguished Easey's claim in negligence against Grosvenor Constructions. However, the court also recognised that Easey might still have a collateral claim against the insurer of Grosvenor Constructions. The court concluded that granting leave to proceed with the claim against Grosvenor Constructions would not be futile, as Easey could still potentially pursue a claim against the insurer. The court found that the potential for a collateral claim against the insurer was sufficient to warrant granting leave to proceed.

The court granted Easey leave to proceed with the claim against Grosvenor Constructions, subject to certain conditions. The court held that the potential for a collateral claim against the insurer was enough to warrant granting leave, despite the potential extinguishment of the claim against Grosvenor Constructions itself. The court emphasised that the decision was narrowly focused on the issue of leave and did not determine the merits of the claim. The orders of the court included granting Easey leave to proceed with the claim against Grosvenor Constructions, subject to the conditions set out in the judgment.

Orders