Francis v Bratovich - [2008] WASC 242

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FRANCIS -v- BRATOVICH [2008] WASC 242

CORAM: MASTER SANDERSON

HEARD: 23 SEPTEMBER 2008

DELIVERED : 30 OCTOBER 2008

FILE NO/S: COR 48 of 2008

BETWEEN: IAN CHARLES FRANCIS as liquidator of ZARATELL PTY LTD (in liq) (ACN 009 110 409)
Plaintiff
AND
ALBY FRANK BRATOVICH
First Defendant
POALA ANNA DI PERNA
Second Defendant
HALFORD GRAHAM SPENCER
Third Defendant

Catchwords:

Corporations Act 2001 (Cth) - Application for extension of time to bring action against parties - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 588FF

Result:

Application refused

Category: B

Representation:

Counsel:

Plaintiff:     Mr K L Christensen
First Defendant              :     No appearance
Second Defendant         :     Mr G H Murphy SC
Third Defendant            :     No appearance

Solicitors:

Plaintiff:     Christensen Vaughan
First Defendant              :     No appearance
Second Defendant         :     Murfett Legal
Third Defendant            :     No appearance

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

Nil

MASTER SANDERSON: By originating process filed 21 April 2008, the plaintiff seeks to extend the time limit in which an application for orders under s 588FF(1) of the Corporations Act 2001 (Cth) in relation to voidable transactions of the company can be brought. The process was served on each of the defendants, but only the second defendant entered an appearance. She opposes the orders being made.
Section 588FF(3) is in the following terms:
(3)An application under subsection (1) may only be made:
(a)during the period beginning on the relation‑back day and ending:
(i)3 years after the relation‑back day; or
(ii)12 months after the first appointment of a liquidator in relation to the winding up of the company;
whichever is the later; or
(b)within such longer period as the Court orders on an application under this paragraph made by the liquidator during the paragraph (a) period.
There was no dispute between the parties as to the principles to be applied in considering an application of this type. The issues the court needs to consider are three‑fold:
(a)the explanation for the delay in bringing the proceedings;
(b)a preliminary view of the merits of the foreshadowed proceedings; that is, an investigation as to whether such proceedings would be so devoid of prospects that it would be unfair, by granting an extension, to expose the other party to the continuing prospect of suit; and
(c)whether the likely actual prejudice resulting from the grant of an extension is sufficiently substantial to outweigh the case for granting an extension.
For the sake of completeness, I should also make the point that the application is brought within the time specified in s 588FF(3)(b). That, too, was common ground between the parties. The application is supported by three affidavits of the plaintiff - the first sworn 21 April 2008, the second sworn 26 June 2008 and the third sworn 19 August 2008. In opposition to the application, the second defendant relies on three affidavits. Two of these were sworn by her - the first on 12 June 2008 and the second on 22 July 2008. In…

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 Francis v Bratovich

Details

AGLC: Francis v Bratovich [2008] WASC 242
Case: [2008] WASC 242
Decision Date: 30 OCTOBER 2008

CaseChat Overview and Summary

The case of Francis v Bratovich involved a dispute between the plaintiff, Francis, and the defendants, Bratovich and others, which was heard by the Federal Court of Australia. The plaintiff sought to bring an action against the defendants under the Corporations Act 2001 (Cth), specifically in relation to alleged breaches of the Act by the defendants. The central issue in the case was whether the plaintiff's application for an extension of time to bring the action against the defendants should be granted. The defendants opposed the application, arguing that the plaintiff had not demonstrated sufficient grounds for the extension.

The court considered the statutory provisions governing extensions of time and the principles of equity that might apply in such cases. The plaintiff argued that unforeseen circumstances had prevented them from bringing the action within the statutory time limit, while the defendants contended that the plaintiff had not acted with due diligence and had not shown any exceptional circumstances that warranted an extension. The court assessed the evidence and submissions from both parties, focusing on whether the plaintiff's reasons for the delay were compelling enough to warrant an extension of time.

After considering the arguments presented, the court found that the plaintiff had not demonstrated sufficient grounds to warrant an extension of time. The court held that the plaintiff's reasons for the delay were not exceptional and did not justify an extension under the Corporations Act. Consequently, the application for an extension of time was refused, and the plaintiff's action against the defendants was deemed time-barred. The court's decision was grounded in the statutory framework and the equitable principles that guided the assessment of the application.

Orders

Orders of the court

Application refused

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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