Godden v Banwell Pty Ltd (ACN 009 394 585) (Subject to a Deed of Company Arrangement)
[2003] WASC 217
•6 NOVEMBER 2003
GODDEN -v- BANWELL PTY LTD (ACN 009 394 585) (Subject to a Deed of Company Arrangement) [2003] WASC 217
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 217 | |
| 06/11/2003 | |||
| Case No: | COR:227/2003 | 4 NOVEMBER 2003 | |
| Coram: | MASTER NEWNES | 4/11/03 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Leave to proceed granted Application for discovery dismissed | ||
| B | |||
| PDF Version |
| Parties: | PAULA ELIZABETH GODDEN BANWELL PTY LTD (ACN 009 394 585) (Subject to a Deed of Company Arrangement) |
Catchwords: | Corporations Act Application for leave to proceed against company in administration Section 440D(1) Application for discovery of any relevant insurance policy Turns on own facts |
Legislation: | Corporations Act 2001 (Cth), s 440D(1), s 444A(4) |
Case References: | Glaister v Banwell Pty Ltd (ACN 009 394 585) (Subject to a Deed of Company Arrangement) [2003] WASC 101 Re Gordon Grant and Grant Pty Ltd (1982) 1 ACLC 196 Barrymores Pty Ltd v Harris Scarfe Ltd [2001] WASC 210 Beneficial Finance Corporation v Price Waterhouse (1996) 68 SASR 19 Meehan & Stockmans Australian Cafe (Holdings) Pty Ltd (1996) 22 ACSR 123 Re Compaction Systems Pty Ltd and the Companies Act [1976] 2 NSWLR 477 Williams v Spautz (1992) 174 CLR 509 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
PUBLISHED : 6 NOVEMBER 2003 FILE NO/S : COR 227 of 2003
MATTER : Section 440D(1)(b), s 444E(3) and s 471B of the Corporations Act
and
BANWELL PTY LTD (ACN 009 394 585) (Subject to a Deed of Company Arrangement)
- Applicant
AND
BANWELL PTY LTD (ACN 009 394 585) (Subject to a Deed of Company Arrangement)
Respondent
(Page 2)
Catchwords:
Corporations Act - Application for leave to proceed against company in administration - Section 440D(1) - Application for discovery of any relevant insurance policy - Turns on own facts
Legislation:
Corporations Act2001 (Cth), s 440D(1), s 444A(4)
Result:
Leave to proceed granted
Application for discovery dismissed
Category: B
Representation:
Counsel:
Applicant : Mr D L Jones
Respondent : Ms L N Strk
Solicitors:
Applicant : Stephen Browne Lawyers
Respondent : Mallesons Stephen Jaques
Case(s) referred to in judgment(s):
Glaister v Banwell Pty Ltd (ACN 009 394 585) (Subject to a Deed of Company Arrangement) [2003] WASC 101
Re Gordon Grant and Grant Pty Ltd (1982) 1 ACLC 196
Case(s) also cited:
Barrymores Pty Ltd v Harris Scarfe Ltd [2001] WASC 210
Beneficial Finance Corporation v Price Waterhouse (1996) 68 SASR 19
(Page 3)
Meehan & Stockmans Australian Cafe (Holdings) Pty Ltd (1996) 22 ACSR 123
Re Compaction Systems Pty Ltd and the Companies Act [1976] 2 NSWLR 477
Williams v Spautz (1992) 174 CLR 509
(Page 4)
1 MASTER NEWNES: On 23 July 2003, the applicant applied for leave nunc pro tunc to commence and proceed with an action for personal injury in the District Court against the respondent, pursuant to s 440D(1)(b) of the Corporations Act 2001 (Cth), and for an order that the respondent produce for inspection by the applicant any policy of insurance by which the respondent is entitled to indemnity in respect of any liability it may have to the applicant.
2 At the conclusion of the hearing on 4 November 2003, I granted leave nunc pro tunc to the respondent to commence and proceed with the action, but declined to order production of any insurance policy. I said I would provide written reasons for my decision. These are those reasons.
3 The applicant says that she was injured on 13 June 2002 while travelling as a passenger on a vessel owned by the respondent and known as "StarFlyte". The applicant says the injury was caused by the respondent's negligence. On 24 July 2002, the applicant's former solicitors filed a writ of summons in the District Court on behalf of the applicant, claiming damages against the respondent.
4 On 30 May 2002, however, some two weeks before the alleged accident, administrators had been appointed to the respondent. On 13 December 2002, a Deed of Company Arrangement was entered into and the administrators were appointed Deed administrators.
5 It was common ground that the applicant's claim is unaffected by the Deed of Company Arrangement, being a claim which post-dated the appointment of the administrators: see s 444A(4)(i) of the Act. However, as the writ was issued while the respondent was under administration, the leave of the Court was required under s 440D(1) of the Act.
6 The applicant now seeks to regularise the commencement of the District Court proceedings by obtaining an order nunc pro tunc that the applicant have leave to commence those proceedings.
7 It was not in issue that leave may be granted nunc pro tunc: Re Gordon Grant and Grant Pty Ltd (1982) 1 ACLC 196.
8 The application for leave under s 440D(1) of the Act was not opposed by the respondent. It acknowledged that if leave was granted, that would simply validate steps that could, and presumably would,
(Page 5)
- otherwise now be taken afresh by the respondent without the leave of the Court.
9 The real issue between the parties was the applicant's further claim for an order that the respondent provide inspection of any public liability insurance policy which the respondent had with Shipowners Mutual Protection, or any other insurer, in respect of any liability the respondent may have to the applicant.
10 The applicant relied on the judgment of Master Sanderson in Glaister v Banwell Pty Ltd (ACN 009 394 585) (Subject to a Deed of Company Arrangement) [2003] WASC 101. In that case, the plaintiff's claim was for personal injuries allegedly suffered on 2 March 2000 as a result of an accident while disembarking from the "SeaFlyte", another vessel owned by the respondent. The plaintiff commenced action against the respondent in the District Court on 27 October 2000. Following the appointment of administrators to the respondent on 30 May 2002, the plaintiff's solicitors sought the administrators' consent, pursuant to s 440D(1), to proceed with the action. The administrators did not give that consent. The plaintiff's solicitors also sought information from the solicitors, who up to that point had been acting for the respondent in the District Court proceedings, and also from the administrators, as to whether there was a policy of insurance which entitled the respondent to be indemnified in respect of any liability to the plaintiff. As in this case, both the solicitor and the administrator declined to provide that information. An application was therefore brought under s 444E(3) of the Act for leave to proceed with the District Court action and also for production of any relevant policy of insurance.
11 An order for production was made. Master Sanderson concluded that, although the plaintiff would not be entitled to discovery of the insurance policy in the District Court proceedings, on an application under s 444(3) of the Act it is a relevant consideration whether or not the defendant is entitled to be indemnified under a policy of insurance: Re Gordon Grant and Grant Pty Ltd (supra) at 199. On such an application, the plaintiff would therefore be entitled to discovery of any relevant policy. The question of whether or not there was a policy of insurance would also be relevant to whether the plaintiff would be entitled to levy execution on any judgment it may obtain in the District Court. The learned Master concluded that, "Discovery, in particular the limited discovery sought by the plaintiff, is necessary for the proper disposition of the originating process."
(Page 6)
12 It will be readily apparent that the position in the present case is quite different. The order that is sought under s 440D(1) in the present case is simply to validate the institution of the proceedings in the District Court. It is common ground that, once that is done, there are currently no further limitations on the applicant's ability to prosecution the action or to enforce any judgment obtained.
13 On an application under s 440D(1), the issue of whether or not a company is insured in respect of a potential liability is relevant only to the issue of whether any order for leave to commence or continue with an action, or to levy execution on any judgment, would adversely affect the proper conduct of the administration. In this instance, the grant of leave is little more than a formality. The respondent has since entered into a Deed of Company Arrangement, which does not bind the applicant, and the applicant does not require the leave of the Court to take any other step in the District Court action. The existence of a policy of insurance is not a relevant issue in this case.
14 It was also argued by the respondent that the Court simply has no power to make an order for discovery on an application of this sort. In the circumstances, it is unnecessary for me to reach a concluded view on that. Even if such a power exists, no circumstances have been shown which would justify an order for production of any relevant insurance policy.
15 It was for those reasons that I granted leave nunc pro tunc to the applicant to commence and proceed with the action in the District Court, but otherwise dismissed the application.
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