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Greig v Stramit Corporation Pty Ltd

Greig v Stramit Corporation Pty Ltd

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Case Copied 18 July 2003 83 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

Greig & Duff as Liquidators of Australian Building Industries P/L (in liq) v Australian Building Industries P/L (in liq) & Anor; Greig & Duff as Liquidators of Australian Building Industries P/L (in liq) v Stramit Corporation P/L & Anor [2003] QCA 298

PARTIES:

JOHN LETHBRIDGE GREIG and ROBERT JOHN DUFF as Liquidators of AUSTRALIAN BUILDING INDUSTRIES PTY LTD (IN LIQUIDATION)
ACN 009 340 952
(applicants/respondents/appellants)
v
AUSTRALIAN BUILDING INDUSTRIES PTY LTD (IN LIQUIDATION) ACN 009 340 952
(respondent)
STRAMIT CORPORATION PTY LIMITED
ACN 005 010 195
(applicant/respondent)

JOHN LETHBRIDGE GREIG and ROBERT JOHN DUFF as Liquidators of AUSTRALIAN BUILDING INDUSTRIES PTY LTD (IN LIQUIDATION)
ACN 009 340 952
(plaintiffs/applicants/respondents)
v
STRAMIT CORPORATION PTY LIMITED
ACN 005 010 195
(defendant/respondent/appellant)
AUSTRALIAN BUILDING INDUSTRIES PTY LTD (IN LIQUIDATION) ACN 009 340 952
(second defendant)

FILE NO/S:

Appeal No 5302 of 2002
Appeal No 9833 of 2002
SC No 7589 of 2000
SC No 8117 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal from interlocutory decision
General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 July 2003

DELIVERED AT:

Brisbane

HEARING DATE:

4 April 2003

JUDGES:

Williams and Jerrard JJA and Fryberg J
Separate reasons for judgment of each member of the Court, Williams and Jerrard JJA concurring as to the orders made, Fryberg J dissenting in part

ORDERS:

1.   Appeal No 5302 of 2002 dismissed with costs to be assessed

2.   On Appeal No 9833 of 2002 [appeal from S7589/00]:

(a)   Appeal allowed

(b) set aside the orders of Mullins J of 1^st and 25^th October 2002

(c)   order that the application filed 5 June 2002 be dismissed

(d) order that the respondents John Lethbridge Greig and Robert John Duff as liquidators of Australian Building Industries Pty Ltd (in liquidation) pay the costs of and incidental to the application and the appeal to be assessed

3.   On Appeal No 9833 of 2002 [appeal from S8117/01]:

(a)   Appeal allowed with costs to be assessed

(b) set aside the order dismissing the application filed 23 May 2002

(c)   grant the appellant Stramit Corporation Limited leave to withdraw the admission of the matters alleged in paragraph 18 of the Statement of Claim filed 7 September 2001 and grant further leave to the appellant to file and serve its Amended Defence of 23 May 2002

(d) judgment for the defendant Stramit Corporation Limited in action S 8117/02 with costs of and incidental to the application and action to be assessed

CATCHWORDS:

CORPORATIONS – WINDING UP – CONDUCT AND INCIDENTS OF LIQUIDATION – EFFECT OF WINDING UP ON OTHER TRANSACTIONS – PREFERENCES – WHAT CONSTITUTES PREFERENCE – GENERALLY – where payments were made by company to Stramit Corporation P/L – where company went into liquidation – where liquidators sought to recover payments made to Stramit on the grounds that they were unfair preferential payments – where Stramit was granted summary judgment dismissing liquidators’ claim below – whether the liquidators have no real prospect of succeeding on their…

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.

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Details

Case: [2003] QCA 298
Decision Date: 18 July 2003

CaseChat Overview and Summary

The appeal involved two separate proceedings against Stramit Corporation P/L, a company which had been paid by Australian Building Industries P/L (ABI) prior to its liquidation. The liquidators of ABI sought to recover the payments made to Stramit on the grounds that they constituted unfair preferences. The court was required to determine the validity of the liquidators’ claims and whether they had a real prospect of succeeding.

The court considered the liquidators' contention that the payments were preferential and thus recoverable. The court concluded that the liquidators did not have a real prospect of succeeding in their claim against Stramit, as the payments were made in the ordinary course of business and did not constitute preferences. Regarding the second issue, the court found that the original order granting an extension of time for the liquidators to bring their claims against Stramit should not have been set aside. The court held that the liquidators were aware that Stramit would be significantly affected by an order extending time, and that the extension should not have been granted in the first place.

The final orders were that the appeal No 5302 of 2002 was dismissed with costs to be assessed. The appeal No 9833 of 2002 was allowed, and the orders of Mullins J of 1st and 25th October 2002 were set aside. The application filed on 5 June 2002 was dismissed, and the respondents were ordered to pay the costs of and incidental to the application and the appeal to be assessed. The appeal was also allowed in respect of the appeal No 9833 of 2002 from S8117/01, with costs to be assessed. The order dismissing the application filed on 23 May 2002 was set aside, and the appellant was granted leave to withdraw the admission of the matters alleged in paragraph 18 of the Statement of Claim and to file and serve its Amended Defence of 23 May 2002. Judgment was entered for the defendant Stramit Corporation Limited in action S 8117/02, with costs of and incidental to the application and action to be assessed.

Orders

Orders of the court

1. Appeal No 5302 of 2002 dismissed with costs to be assessed

2. On Appeal No 9833 of 2002 [appeal from S7589/00]:

(a) Appeal allowed

(b) set aside the orders of Mullins J of 1st and 25th October 2002

(d) order that the respondents John Lethbridge Greig and Robert John Duff as liquidators of Australian Building Industries Pty Ltd (in liquidation) pay the costs of and incidental to the application and the appeal to be assessed

3. On Appeal No 9833 of 2002 [appeal from S8117/01]:

(a) Appeal allowed with costs to be assessed

(b) set aside the order dismissing the application filed 23 May 2002

(c) grant the appellant Stramit Corporation Limited leave to withdraw the admission of the matters alleged in paragraph 18 of the Statement of Claim filed 7 September 2001 and grant further leave to the appellant to file and serve its Amended Defence of 23 May 2002

(d) judgment for the defendant Stramit Corporation Limited in action S 8117/02 with costs of and incidental to the application and action to be assessed

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.

CITATION:	Greig & Duff as Liquidators of Australian Building Industries P/L (in liq) v Australian Building Industries P/L (in liq) & Anor; Greig & Duff as Liquidators of Australian Building Industries P/L (in liq) v Stramit Corporation P/L & Anor [2003] QCA 298
PARTIES:	JOHN LETHBRIDGE GREIG and ROBERT JOHN DUFF as Liquidators of AUSTRALIAN BUILDING INDUSTRIES PTY LTD (IN LIQUIDATION) ACN 009 340 952 (applicants/respondents/appellants) v AUSTRALIAN BUILDING INDUSTRIES PTY LTD (IN LIQUIDATION) ACN 009 340 952 (respondent) STRAMIT CORPORATION PTY LIMITED ACN 005 010 195 (applicant/respondent) JOHN LETHBRIDGE GREIG and ROBERT JOHN DUFF as Liquidators of AUSTRALIAN BUILDING INDUSTRIES PTY LTD (IN LIQUIDATION) ACN 009 340 952 (plaintiffs/applicants/respondents) v STRAMIT CORPORATION PTY LIMITED ACN 005 010 195 (defendant/respondent/appellant) AUSTRALIAN BUILDING INDUSTRIES PTY LTD (IN LIQUIDATION) ACN 009 340 952 (second defendant)
FILE NO/S:	Appeal No 5302 of 2002 Appeal No 9833 of 2002 SC No 7589 of 2000 SC No 8117 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal from interlocutory decision General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 July 2003
DELIVERED AT:	Brisbane
HEARING DATE:	4 April 2003
JUDGES:	Williams and Jerrard JJA and Fryberg J Separate reasons for judgment of each member of the Court, Williams and Jerrard JJA concurring as to the orders made, Fryberg J dissenting in part
ORDERS:	1. Appeal No 5302 of 2002 dismissed with costs to be assessed 2. On Appeal No 9833 of 2002 [appeal from S7589/00]: (a) Appeal allowed (b) set aside the orders of Mullins J of 1^st and 25^th October 2002 (c) order that the application filed 5 June 2002 be dismissed (d) order that the respondents John Lethbridge Greig and Robert John Duff as liquidators of Australian Building Industries Pty Ltd (in liquidation) pay the costs of and incidental to the application and the appeal to be assessed 3. On Appeal No 9833 of 2002 [appeal from S8117/01]: (a) Appeal allowed with costs to be assessed (b) set aside the order dismissing the application filed 23 May 2002 (c) grant the appellant Stramit Corporation Limited leave to withdraw the admission of the matters alleged in paragraph 18 of the Statement of Claim filed 7 September 2001 and grant further leave to the appellant to file and serve its Amended Defence of 23 May 2002 (d) judgment for the defendant Stramit Corporation Limited in action S 8117/02 with costs of and incidental to the application and action to be assessed
CATCHWORDS:	CORPORATIONS – WINDING UP – CONDUCT AND INCIDENTS OF LIQUIDATION – EFFECT OF WINDING UP ON OTHER TRANSACTIONS – PREFERENCES – WHAT CONSTITUTES PREFERENCE – GENERALLY – where payments were made by company to Stramit Corporation P/L – where company went into liquidation – where liquidators sought to recover payments made to Stramit on the grounds that they were unfair preferential payments – where Stramit was granted summary judgment dismissing liquidators’ claim below – whether the liquidators have no real prospect of succeeding on their…