Gerblich v Adplan Pty Ltd (No 3) - [2011] SASC 225

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
GERBLICH v ADPLAN PTY LTD (No 3)
[2011] SASC 225
Reasons of Judge Lunn a Master of the Supreme Court
9 December 2011
PROCEDURE
Date of filing of originating process - held, following Tytler v Corbett (Bleby J, [2005] SASC 26), a document could not be filed unless the filing fee was first paid or waived - held subsequent order remitting to the plaintiff the filing fee paid by him was not a review of the Registrar's refusal to waive the fee, but a decision to remit the fee to the plaintiff - what constitutes acceptance for filing under 6R 50(1)(a) - effect to be given to filing date endorsed by the Registrar on the document - held document was filed on 13 July 2011 as endorsed by Registrar and not on 12 July 2011 when delivered to the Registry.

GERBLICH v ADPLAN PTY LTD (No 3)
[2011] SASC 225
JUDGE LUNN:
Reasons on effect of subsequent remission of the filing fee

In my reasons (No 2) delivered on 21 November 2011 (FDN18) I said as follows:
Background
1 By his Originating Process the plaintiff seeks an order for the winding up of the defendant under s 459P of the Corporations Act 2001 (“the Act”) on the grounds of its presumed insolvency under s 459C(2)(a) of the Act by reason of it not having complied with a statutory demand for payment of $2072. A principal point in issue is whether the Originating Process was issued on Tuesday 12 or Wednesday 13 July 2011. If it was not issued until 13 July, it is common ground that the plaintiff cannot rely upon any presumed insolvency of the defendant under s 459C(2)(a) of the Act.
2 On 16 August 2011 Judge Burley ordered the matter proceed to a hearing on a preliminary point of whether there was presumed insolvency of the defendant pursuant to s 459C(2)(a) of the Act.[1] On 2 September 2011 Judge Burley made a fiat, “Preliminary points determined that the plaintiff has commenced this action within the relevant three month period”. He published reasons for that decision (FDN10).
[1] He also directed the hearing of another preliminary point, but that is of no relevance at present.
…
6 Judge Burley was not referred to, and did not consider, the decision of Bleby J in Tytler v Corbett.[2]There, Bleby J considered whether an appeal had been filed where the appellant had not paid the prescribed fee. At paragraph [22] of his reasons he said:
[2] 21 January 2005, Judgment No [2005] SASC 26.
22. The regulations prescribing the fees payable on the filing of various Court documents prescribe the fees to be paid “on filing” the particular document. The registry therefore cannot accept a document for filing unless the appropriate fee is paid, unless appropriate arrangements with a solicitor are in place for the payment of the fee or unless and until an order is made for the remission or reduction…

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 (No 3)

Details

AGLC: Gerblich v Adplan Pty Ltd (No 3) [2011] SASC 225
Case: [2011] SASC 225
Decision Date: 9 December 2011

CaseChat Overview and Summary

The case of Gerblich v Adplan Pty Ltd (No 3) involved a dispute between the plaintiff, Gerblich, and the defendant, Adplan Pty Ltd. The plaintiff sought an order for the winding up of the defendant under section 459P of the Corporations Act 2001, alleging that the defendant was presumed insolvent under section 459C(2)(a) of the Act due to non-compliance with a statutory demand for payment of $2072. The central issue in the case was whether the Originating Process was issued on 12 July or 13 July 2011, as this would determine the validity of the plaintiff’s claim regarding the defendant’s presumed insolvency. The matter was heard in the Supreme Court of South Australia.

The court had to decide whether the Originating Process was indeed filed on 12 July 2011, as the plaintiff claimed, or whether it was only filed on 13 July 2011, which would invalidate the plaintiff's argument regarding the defendant's presumed insolvency. This hinged on whether the plaintiff had fulfilled the requirement of paying the filing fee before the document could be accepted by the court registry. The court examined the interpretation of relevant regulations and previous case law, particularly focusing on the decision in Tytler v Corbett, to ascertain whether the fee had been effectively paid on 12 July. The plaintiff argued that there were appropriate arrangements in place with a solicitor for the payment of the fee, but the court found that these arrangements did not result in the fee being paid on the required date.

The court held that the Originating Process was not filed on 12 July 2011, but only on 13 July 2011, based on the interpretation of the Supreme Court Regulations 2005 and the decision in Tytler v Corbett. The court found that the plaintiff had not fulfilled the necessary conditions for the fee to be considered paid on 12 July. This conclusion meant that the plaintiff could not rely on the defendant’s presumed insolvency as a basis for the winding-up order. The court left open the possibility for the plaintiff to pursue a claim for the repayment of the filing fee under section 130(2) of the Supreme Court Act, but indicated that this would require further substantiation.

The court's final orders were that the plaintiff's claim for the winding-up of the defendant based on presumed insolvency was invalid due to the improper timing of the filing of the Originating Process. The court also indicated that if the plaintiff wished to pursue a claim for the repayment of the filing fee, it would need to provide additional evidence and arguments to support such a claim.

Orders

Orders of the court

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Background

Background to the litigation

In my reasons (No 2) delivered on 21 November 2011 (FDN18) I said as follows:Background1 By his Originating Process the plaintiff seeks an order for the winding up of the defendant under s 459P of the Corporations Act 2001 (“the Act”) on the grounds of its presumed insolvency under s 459C(2)(a) of the Act by reason of it not having complied with a statutory demand for payment of $2072. A principal point in issue is whether the Originating Process was issued on Tuesday 12 or Wednesday 13 July 2011. If it was not issued until 13 July, it is common ground that the plaintiff cannot rely upon any presumed insolvency of the defendant under s 459C(2)(a) of the Act.2 On 16 August 2011 Judge Burley ordered the matter proceed to a hearing on a preliminary point of whether there was presumed insolvency of the defendant pursuant to s 459C(2)(a) of the Act.[1] On 2 September 2011 Judge Burley made a fiat, “Preliminary points determined that the plaintiff has commenced this action within the relevant three month period”. He published reasons for that decision (FDN10).[1] He also directed the hearing of another preliminary point, but that is of no relevance at present. …6 Judge Burley was not referred to, and did not consider, the decision of Bleby J in Tytler v Corbett.[2]There, Bleby J considered whether an appeal had been filed where the appellant had not paid the prescribed fee. At paragraph [22] of his reasons he said:[2] 21 January 2005, Judgment No [2005] SASC 26.22. The regulations prescribing the fees payable on the filing of various Court documents prescribe the fees to be paid “on filing” the particular document. The registry therefore cannot accept a document for filing unless the appropriate fee is paid, unless appropriate arrangements with a solicitor are in place for the payment of the fee or unless and until an order is made for the remission or reduction of the fee pursuant to s 130(2) of the Supreme Court Act. See also Angus Fire Armour v Collector of Customs (1987) 17 FCR 473.7 Bleby J did not consider the Northern Territory decision of Davies v Lewis, which was cited by Judge Burley in his reasons, or the other two cases mentioned in footnote 2 of the reasons of Judge Burley. However, it is not for a Master of this Court to follow interstate authorities which are in conflict with pronouncements by single Judges of this Court. 8 The regulations apparently referred to by Bleby J in his reasons were the Supreme Court (Fees) Regulations 1999. In this matter, the relevant regulations were the Supreme Court Regulations 2005 which superseded the 1999 regulations. However, the relevant wording of the two sets of regulations do not differ in any material respect. The words “on filing”, which were cited by Bleby J, are at the beginning of Part 1 of the Schedule in both sets of regulations.9 At the time of the decision in Tytler v Corbett the now repealed 87R 107.04(1) provided:All fees … chargable by the Court under section 130 of the Act and the Regulations made thereunder should be paid by the practitioner or the party as the case may be before any process … or document is issued from, or filed in the Registry …There is no equivalent rule in the Supreme Court Civil Rules 2006. However, Bleby J did not cite that Rule as authority for what he decided, but apparently relied upon his interpretation of the Fees Regulations. 10 Unless what Bleby J said in [22] of Tytler v Corbett can be distinguished on the facts of this case, I consider that as a Master of this Court I am obliged in deciding this action to follow and apply what he said.11 Counsel for the plaintiff sought to distinguish Tytler v Corbett on the ground that on the facts of this matter there were “appropriate arrangements with a solicitor … in place for the payment of the fee” and that such arrangement meant that the Registrar had accepted the Originating Process for filing on 12 July. [I then dealt with the facts relating to this argument.]16 Hence, I do not find that there was any appropriate arrangement with the plaintiff in place for the payment of the filing fee on 12 July.[3] Accordingly, I do not find that the filing fee for the Originating Process was paid on 12 July. The plaintiff did not do enough on 12 July to ensure that the steps for payment were completed on that day. If his failure to do so was in part due to any default of the Registry, about which I make no finding, that does not enable the Court to backdate the filing of the document from 13 July to 12 July. Hence, in my view, I am bound by Tytler v Corbett to hold that the Originating Process was not filed on 12 July, but only on 13 July. Insofar as Judge Burley found to the contrary, this was done per incuriam, and is not to be acted upon.17 I leave it open for the plaintiff, if he so wishes, to pursue any submission based on an order of Judge Withers of 23 September 2011 remitting the filing fee to the plaintiff. However, if that point is to be pursued, I will need to be persuaded that s 130(2) of the Supreme Court Act, or some other head of power, gives the Court power to order the repayment of a filing fee once it has been paid.[3] For the application of what was said by Bleby J in [22] of Tytler v Corbett I accept that the reference to a solicitor can extend to a litigant in person who is not then legally represented.

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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