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Editions Tom Thompson Pty Ltd v Pilley

Editions Tom Thompson Pty Ltd v Pilley

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EDITIONS TOM THOMPSON PTY LIMITED (subject to Deed of Company Arrangement) v. BRUCE PILLEY
No. NG 3628 of 1996
FED No. 882/97
Number of pages - 13
Corporations - Practice and Procedure
(1997) 148 ALR 146
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
LINDGREN J

Corporations - company subject to deed of company arrangement - dispute between company under administration and third party as to which owned certain goods - application under s 447D of the Corporations Law for directions as to whether administrators "entitled to sell" the goods - inappropriateness of procedure of application for directions to resolve substantive dispute between company and third party as to title.

Practice and Procedure - company subject to deed of company arrangement - dispute between company under administration and third party as to which owned certain goods - application under s 447D of the Corporations Law for directions as to whether administrators "entitled to sell" the goods - inappropriateness of procedure of application for directions to resolve substantive dispute between company and third party as to title.

Corporations Law ss 442C, 447D, 479(3)

Re G B Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 followed

Re Magic Aust Pty Ltd (in liq) (1992) 7 ACSR 742 followed

Re J W Murphy & P C Allen; Re BPTC Ltd (in liq) (1996) 19 ACSR 569 followed

Osborne Computer Corporation Pty Ltd v Riddell (1995) 13 ACLC 1210 distinguished

SYDNEY, 7 August 1997 (hearing and decision)

#DATE 7:8:1997

#ADD 9:9:1997

Solicitor for the Applicant: Mr J G Harrowell of Hunt & Hunt

Counsel for the Respondent: Mr David Collins

Solicitors for the Respondent: Lewis Hutchinson

THE COURT ORDERS THAT:

The applicant's motion for leave to amend brought by notice of motion filed on 7 August 1997 be dismissed.
2. The applicant pay the respondent's cost of that motion.

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

LINDGREN J

INTRODUCTION

There is before the Court an application which was filed on 26 August 1996 by Editions Tom Thompson Pty Limited (subject to Deed of Company Arrangement) (ACN 067 149 946) ("ETT"). On 5 May 1997, the application was fixed for hearing today and tomorrow.

APPLICATION AND MOTION FOR LEAVE TO AMEND APPLICATION

The application purports to be made under s 447D of the Corporations Law ("the Law"). That section states:

"447D(1) The administrator of a company under administration, or of a deed of company arrangement, may apply to the Court for directions about a matter arising in connection with the performance or exercise of any of the administrator's functions and powers.
(2) The administrator of a deed of company arrangement may apply to the Court for directions about a matter arising in connection with the operation, or giving effect to, the deed."

The application seeks the following direction:

"Messrs E G Chant & I L Struthers, the Administrators of Editions Tom Thompson Pty Limited ('ETT') are entitled…

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: [1997] FCA 882
Decision Date: 7 AUGUST 1997

CaseChat Overview and Summary

Editions Tom Thompson Pty Ltd (ETT), a company in administration, sought directions from the Court under s 447D of the Corporations Law that the Administrators of ETT were entitled to sell certain assets. The respondent, Mr Pilley, opposed the application on several grounds, including that it was inappropriate for the Court to resolve the substantive dispute between ETT and Mr Pilley as to ownership of the assets by means of an application for directions. The Court was of the opinion that the Administrators, and not ETT, had standing to apply for directions under s 447D. The Court also found that the procedure of an application for directions was not one by which the dispute as to ownership could be finally resolved. The Court concluded that it was not appropriate to grant leave to amend the application so as to re-constitute it as an inter partes proceeding for the determination of substantive rights. The Court dismissed the motion for leave to amend with costs.

Orders