Gerblich v Adplan Pty Ltd - [2012] SASCFC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application)
GERBLICH v ADPLAN PTY LTD
[2012] SASCFC 79
Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice Peek and The Honourable Justice Stanley)
3 July 2012
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - COMMENCEMENT OF ACTION
Applicant sought review of decisions of Registrar of the Supreme Court refusing to accept for filing an originating process to wind up the defendant, and refusing to remit filing fee - application made pursuant to s 459P of the Corporations Act 2001 (Cth) - whether an application should be taken to have been made on the day the originating process was presented at the Registry in acceptable form, accompanied by a meritorious request for remission of filing fee.
Held: originating process to be taken to have been issued on the day the application was made at the Registry - remission of filing fee was appropriate in the circumstances - no fault of the applicant that the originating process was not accepted for filing immediately upon presentation.
Supreme Court Civil Rules 2006 r 21, r 50; Corporations Act 2001 s 459A, s 459B, s 459C, s 459P; Supreme Court Act 1935 s 62H, s 130; Corporations Rules 2003 r 2.2; Judiciary Act 1903 (Cth) s 79; Supreme Court Regulations 2005 reg 5, Schedule 1; Customs Act 1901 (Cth) s 273GA; Administrative Appeals Tribunal Act 1975 (Cth) s 29, referred to.
Purden Pty Ltd v Registrar in Bankruptcy (1982) 64 FLR 306; Ursula Riniker v University College London 1999 WL 477711; Barnes v St Helens Metropolitan Borough Council [2006] EWCA Civ 1372, applied.
Tytler v Corbett (2005) 238 LSJS 179, distinguished.
Angus Fire Armour v Collector of Customs (NSW) (1987) 17 FCR 473; Angus Fire Armour v Collector of Customs (NSW) (1988) 19 FCR 477, discussed.
Davies v Lewis (2001) 165 FLR 324, considered.

GERBLICH v ADPLAN PTY LTD
[2012] SASCFC 79
Full Court: Vanstone, Peek and Stanley JJ

VANSTONE J: The applicant, Mr Gerblich, applies for review of two decisions made by the Registrar of this Court on 12 July 2011. The application was referred to the Full Court by a single judge of this Court.
The main question for decision is as to the day when an application should be seen to have been made; whether on the day the originating process was presented at the Registry in acceptable form, along with a meritorious request for remission, or on the day of the order remitting the fee. The answer to this question will determine whether Mr Gerblich’s application to wind up the defendant company in insolvency was made in time to enable him to take advantage of the presumed insolvency provisions of the Corporations Act 2001 (Cth).
Background
The application for review is made pursuant to r 21 of the Supreme Court Civil Rules 2006 (SA) (the Civil Rules). It was made on 13 February 2012 and so is substantially out…

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 Gerblich v Adplan Pty Ltd

Details

AGLC: Gerblich v Adplan Pty Ltd [2012] SASCFC 79
Case: [2012] SASCFC 79
Decision Date: 3 July 2012

CaseChat Overview and Summary

In *Gerblich v Adplan Pty Ltd*, the applicant, Mr Gerblich, sought a review of decisions made by the Registrar of the Supreme Court of South Australia. The Registrar had refused to accept for filing an originating process intended to wind up the defendant company in insolvency, and had also refused to remit the associated filing fee. The application for review was made pursuant to section 459P of the *Corporations Act 2001* (Cth) and rule 21 of the *Supreme Court Civil Rules 2006* (SA).

The central legal issues before the Full Court of the Supreme Court of South Australia were whether the originating process should be deemed to have been filed on the day it was presented at the Registry in an acceptable form, accompanied by a meritorious request for fee remission, or on the later date when the fee remission was ordered. This determination was critical to establishing whether Mr Gerblich's application to wind up the company was made within the time limits necessary to engage the presumed insolvency provisions of the *Corporations Act*. The Court also considered whether the applicant was entitled to an extension of time for his application for review and whether the defendant company had a right to be heard regarding the application for review and fee remission.

The Court reasoned that the applicant's request for fee remission was meritorious, and that the failure of the originating process to be accepted for filing immediately upon presentation was not due to any fault of the applicant. Consequently, the Court held that the originating process should be taken to have been filed on the day it was presented at the Registry, 12 July 2011. The Court also granted an extension of time for the filing of the application for review and allowed an amendment to the application to seek a declaration to this effect.

The Court made orders extending the time for filing the application for review to 13 February 2012, granting permission to amend the application, reversing the Registrar's order refusing to remit the filing fee, and declaring that the originating process was to be taken for all purposes as having been filed on 12 July 2011.

Orders

Orders of the court

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Background

Background to the litigation

The main question for decision is as to the day when an application should be seen to have been made; whether on the day the originating process was presented at the Registry in acceptable form, along with a meritorious request for remission, or on the day of the order remitting the fee. The answer to this question will determine whether Mr Gerblich’s application to wind up the defendant company in insolvency was made in time to enable him to take advantage of the presumed insolvency provisions of the Corporations Act 2001 (Cth).Background The application for review is made pursuant to r 21 of the Supreme Court Civil Rules 2006 (SA) (the Civil Rules). It was made on 13 February 2012 and so is substantially out of time. The relevant orders sought in the application include:2.That the decision of the Registrar on 12 July 2011, to not accept for filing the originating process for winding up of the Defendant pursuant to s 459P of the Corporations Act 2001 (Cth), be reviewed.3That the decision of the Registrar on 12 July 2011, to not remit the fee due upon the filing of the originating process for winding up of the Defendant pursuant to s 459P of the Corporations Act 2001 (Cth), be reviewed.An order extending time for the filing of the application is also sought. At the hearing it was sought to amend the application to add another paragraph as follows:8.That the Court declare that the originating process was properly filed on 12 July 2011.The amendment was opposed due to lack of notice of it and the Court indicated it would receive written submissions going to the issues it raised and would rule on the amendment in the course of its decision. The originating process presented by Mr Gerblich on 12 July 2011 proceeded under Part 5.4 of the Corporations Act. Relevant sections are as follows:SECTION 459A ORDER THAT INSOLVENT COMPANY BE WOUND UP IN INSOLVENCY459AOn an application under section 459P, the Court may order that an insolvent company be wound up in insolvency.SECTION 459B ORDER MADE ON APPLICATION UNDER SECTION 234, 462 OR 464459BWhere, on an application under section 234, 462 or 464, the Court is satisfied that the company is insolvent, the Court may order that the company be wound up in insolvency.Mr Gerblich was entitled to make the application, being a creditor of the defendant company: s 459P Corporations Act. Section 459C(2) provides for a presumption that the company is insolvent which takes effect in circumstances which include the defendant having failed to comply with a statutory demand during the previous three months. Section 62H of the Supreme Court Act 1935 (SA) provides that rules of court may be made regulating the practice and procedure of the Court, including in respect of jurisdiction conferred on the Court by statutes other than the Supreme Court Act. The Corporations Rules 2003 (SA) are such rules. By s 79 of the Judiciary Act 1903 (Cth) the procedure of a court exercising federal jurisdiction is applicable when state courts exercise federal jurisdiction.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have said that the application for remission of fees was meritorious. It is not necessary to resort to the additional materials presented to Judge Withers in order to reach that position. It follows that I agree with Judge Withers’ decision. I would have been inclined to imply that the failure of Judge Withers to expressly grant an extension of time within which to review the Registrar’s decision was an oversight. It would have been perverse not to grant a remission having regard to the reasons put forward by the plaintiff, and that in turn would have had an impact on the decision to extend time. I do not agree that the defendant should have had notice of the application for review or that he had the right to be heard in relation to it. I note that, in light of Judge Burley’s orders already made, there would have been no adverse impact on the defendant. However, since the application for an extension of time was not sought, nor expressly adverted to, I propose an order in terms of the fourth order now sought by the plaintiff, being the declaration. Conclusion For the foregoing reasons, I would make these orders:1.the time for the filing of the application for review is extended to 13 February 2012;2.permission is granted to amend the application to add under orders sought a further order in terms of paragraph 8 as earlier set out;3.the order of the Registrar refusing to remit the filing fee payable in respect of the originating process herein is reversed;4.the Court declares that the originating process is to be taken for all purposes as having been filed on 12 July 2011. PEEK J: I agree with the orders proposed by Vanstone J and with her reasons. STANLEY J: I agree with the reasons and orders of Vanstone J.

Ratio Decidendi

Legal Principle Established

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