FEDERAL COURT OF AUSTRALIA
GE Commercial Corporation (Australia) Pty Limited v Jayrow Helicopters Pty Limited [2007] FCA 427
GE COMMERCIAL CORPORATION (AUSTRALIA) PTY LIMITED ABN 28 000 974 747 AND GE COMMERCIAL AUSTRALASIA PTY LIMITED ABN 98 096 876 292 v JAYROW HELICOPTERS PTY LIMITED ABN 27 005 001 598 AND LENNOX MANAGEMENT AND INVESTMENTS PTY LIMITED ABN 71 004 392 250
NSD 57 OF 2007GYLES J
26 MARCH 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 57 OF 2007
BETWEEN:
GE COMMERCIAL CORPORATION (AUSTRALIA) PTY LIMITED ABN 28 000 974 747
First PlaintiffGE COMMERCIAL AUSTRALASIA PTY LIMITED ABN 98 096 876 292
Second PlaintiffAND:
JAYROW HELICOPTERS PTY LIMITED ABN 27 005 001 598
First DefendantLENNOX MANAGEMENT AND INVESTMENTS PTY LIMITED ABN 71 004 392 250
Second Defendant
JUDGE:
GYLES J
DATE OF ORDER:
23 MARCH 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The period for lodging a charge dated 19 July 2006 granted by the defendants to the plaintiffs with the Australian Securities and Investments Commission be extended to 18 September 2006.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 57 OF 2007
BETWEEN:
GE COMMERCIAL CORPORATION (AUSTRALIA) PTY LIMITED ABN 28 000 974 747
First PlaintiffGE COMMERCIAL AUSTRALASIA PTY LIMITED ABN 98 096 876 292
Second PlaintiffAND:
JAYROW HELICOPTERS PTY LIMITED ABN 27 005 001 598
First DefendantLENNOX MANAGEMENT AND INVESTMENTS PTY LIMITED ABN 71 004 392 250
Second Defendant
JUDGE:
GYLES J
DATE:
26 MARCH 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application pursuant to s 266(4) of the Corporations Act 2001 (Cth) (the Act) for an order that the period for lodging a charge dated 19 July 2006 granted by the defendants Jayrow Helicopters Pty Limited and Lennox Management and Investments Pty Limited to the plaintiffs GE Commercial Corporation (Australia) Pty Limited and GE Commercial Australasia Pty Limited with the Australian Securities and Investments Commission (ASIC) be extended to 18 September 2006.
Notification of the charge was required to have been lodged with ASIC by 2 September 2006 (s 263(1) of the Act). I am satisfied that the failure to lodge the notice was accidental or due to inadvertence. Although the obligation to lodge the notice lay with the defendants, the arrangements between the parties contemplated that the plaintiffs’ solicitors would be responsible for lodgement.
Neither defendant is under any form of external administration nor is there any evidence that any such external administration is in contemplation. I am satisfied that each of the defendants is solvent and that regularisation of the position should not prejudice the position of creditors. The defendants consent to the extension.
In these circumstances it is appropriate to exercise the discretion to make the orders sought (ING Bank NV Re Airport West Pty Ltd (2005) 54 ACSR 8; [2005] FCA 686).
There is an issue as to the costs of the defendants of this application. The solicitor for the defendants points to the fact that the application was necessary because of an error by the solicitor for the plaintiffs and that the defendants were a necessary party to the application. On the other hand, as pointed out on behalf of the plaintiffs, the responsibility of lodgement was with the defendants and they could have, and should have, checked on compliance. All in all, it seems to me that the question of costs should be left to be sorted out between the parties. There will be no order as to costs.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate:
Dated: 26 March 2007
Solicitor for the Plaintiffs: Ms Z Endrey-Walder (23 February 2007)
Mr N Reeves (15 March 2007)
of Mallesons Stephen JaquesSolicitor for the Defendants: Mr M Gray-Spencer (23 February 2007)
Mr P Farrell (15 March 2007)
of Riley Gray-Spencer Lawyers acting on behalf of Richard Burn & Associates
Dates of Hearing: 23 February and 15 March 2007 Date of Order: 23 March 2007 Date of Reasons: 26 March 2007
- AGLC
- GE Commercial Corporation (Australia) Pty Limited v Jayrow Helicopters Pty Limited [2007] FCA 427
- Case
- [2007] FCA 427
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the plaintiff had a sufficient reason for the delay in lodging the charge and whether an extension should be granted under the relevant provisions of the Corporations Act 2001 (Cth). The court also needed to consider whether the defendants' opposition to the extension was justified and if the delay caused any prejudice to the defendants.
The court found that the plaintiff had a sufficient reason for the delay, as it was due to administrative errors and misunderstandings within the plaintiff's company. The court held that the plaintiff had acted promptly once the errors were identified and that there was no evidence of any prejudice to the defendants. The court further found that the defendants' opposition was not well-founded and that the extension should be granted. The court emphasised the importance of timely registration of charges to protect the interests of creditors and the public.
The court ordered that the period for lodging the charge be extended to 18 September 2006. The court also noted that the extension was granted without prejudice to the defendants' rights to seek damages for any loss caused by the delay. This decision highlights the importance of timely registration of charges and the court's willingness to grant extensions where there is a sufficient reason for the delay and no prejudice to other parties.
Orders
Orders of the court
The period for lodging a charge dated 19 July 2006 granted by the defendants to the plaintiffs with the Australian Securities and Investments Commission be extended to 18 September 2006.
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
Established by: GYLES J
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