Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Gerace v Auzhair Supplies Pty Ltd [2014] NSWCA 181 Hearing dates: 14 November 2013 Decision date: 06 June 2014 Before: Beazley P at [1];
Meagher JA at [2];
Emmett JA at [81]Decision: (1) Grant leave to the appellants under s 471B of the Corporations Act to proceed against the first respondent in liquidation.
(2) Appeal allowed.
(3) Orders 4, 5 and 8 made on 4 March 2013 be set aside.
(4) The first respondent pay the appellants’ costs of the appeal.
(5) The first respondent pay the appellants’ costs incurred since 19 November 2010 in proceedings 2010/17300 except in so far as any remaining costs order provides otherwise.
(6) The first respondent pay the appellants’ costs incurred in proceedings 2012/80701.Catchwords: LIMITATION OF ACTIONS - equitable claims - claim brought by company in liquidation against its directors for breaches of equitable duties in transferring away company’s assets and business undertaking - six year limitation period under s 1317K of Corporations Act (Cth) applying to claim for contravention of equivalent statutory duties - principles by reference to which equity applies statutory limitation period by analogy - whether does so as part of the law of laches so that if delay during limitation period would not constitute laches equity would not apply statute by analogy or by inquiring if there are special circumstances such as concealed fraud that would make it unconscionable for the defendant to rely on the statute Legislation Cited: Common Law Procedure Act 1854 (UK)
Corporations Act 2001 (Cth), ss 180, 181, 182, 183, 601A, 1317
Crown Suits Act 1898 (WA), s 33
Limitation Act 1623 (UK), s 3
Limitation Act 1939 (UK), s 25(c)
Limitation Act 1969 (NSW), ss 36, 52, 55, 56, 60G
Limitation Act 1980 (UK), s 36
Mercantile Law Amendment Act 1856 (UK)
Real Property Limitation Act 1833 (UK), ss 24, 26
Supreme Court of Judicature Act 1873 (UK)Cases Cited: Agricultural Land Management Ltd v Jackson (No 2) [2014] WASC 102
Applegate v Moss [1971] 1 QB 406
Archbold v Scully (1861) 9 HL Cas 360
Attorney-General for Hong Kong v Reid [1994] 1 AC 324
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199
Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18; 214 CLR 51
Barker v Duke Group Ltd (In liq) (2005) 91 SASR 167
Bartlett v Barclays Bank Trust Co Ltd (No 1) [1980] Ch 515
Beaman v A.R.T.S. Ltd [1949] 1 KB 550
Betjemann v Betjemann [1895] 2 Ch 474
Booth v Earl of Warrington (1714) 4 Bro PC 163
Brightwell v RFB Holdings Pty Ltd [2003] NSWSC 7; 44 ACSR 186
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541
Brooksbank v Smith (1836) 2 Y & C Ex 58
Bulli Coal Mining Company v Osborne [1899] AC 351
Candibon Pty Ltd v Minister for…
Keep reading for free
Create a free CaseChat account to read Gerace v Auzhair Supplies Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2014] NSWCA 181
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the six-year limitation period prescribed by s 1317K of the *Corporations Act 2001* (Cth) for contraventions of equivalent statutory duties should be applied by analogy to the company's equitable claims. The court was required to determine the principles by which equity applies statutory limitation periods, specifically whether this occurs as part of the law of laches, and if so, whether the absence of laches within the limitation period would preclude the application of the statute by analogy, or if an inquiry into special circumstances, such as concealed fraud, would be necessary to prevent unconscionable reliance on the statute.
The Court of Appeal allowed the appeal, finding that the six-year limitation period under s 1317K of the *Corporations Act* was applicable by analogy to the equitable claims. The court reasoned that equity generally adopts statutory limitation periods where the equitable claim is analogous to a statutory cause of action. The court also considered that the principles of laches would not necessarily prevent the application of the statutory period by analogy, and that the question of whether it would be unconscionable to rely on the statute would be a relevant consideration. Consequently, the court set aside certain earlier orders and granted leave for the company to proceed against the directors.
Orders
Orders of the court
(1) Grant leave to the appellants under s 471B of the Corporations Act to proceed against the first respondent in liquidation.
(2) Appeal allowed.
(3) Orders 4, 5 and 8 made on 4 March 2013 be set aside.
(4) The first respondent pay the appellants’ costs of the appeal.
(5) The first respondent pay the appellants’ costs incurred since 19 November 2010 in proceedings 2010/17300 except in so far as any remaining costs order provides otherwise.
(6) The first respondent pay the appellants’ costs incurred in proceedings 2012/80701.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.