JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: H2 MIGRATION & EDUCATION PTY LTD -v- GU [2023] WASC 199
CORAM: SEAWARD J
HEARD: 16 MARCH 2023
DELIVERED : 9 JUNE 2023
FILE NO/S: CIV 2015 of 2022
BETWEEN: H2 MIGRATION & EDUCATION PTY LTD
Plaintiff
AND
JIANQING GU
Defendant
Catchwords:
Corporations - Procedure - Insolvent trading - Application to set aside writ of summons - Failure to commence action using correct originating process - Whether a proceeding is commenced 'under the Corporations Act' - Strike out application - Summary judgment application - Declaratory relief - Whether GST debt correctly pleaded - Whether a conditional appearance constitutes an appearance for a summary judgment application - Whether a liquidator can assign the right to bring an insolvent trading claim and the fruits of that claim
Legislation:
Corporations Act 2001 (WA)
Rules of the Supreme Court 1971
Supreme Court (Corporations) (WA) Rules 2004
Supreme Court Act 1935 (WA)
A New System (Goods and Services Tax) Act 1999 (Cth)
Taxation Administration Act 1953 (Cth)
Result:
Writ of summons treated as if it were an originating process filed under the Supreme Court (Corporations) (WA) Rules 2004
Application to strike out allowed in part
Application for summary judgment dismissed
Application for declaratory relief dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | J Winton |
| Defendant | : | M Crowley |
Solicitors:
| Plaintiff | : | Williams & Hughes |
| Defendant | : | Tan & Tan Lawyers |
Cases referred to in decision:
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Anderson v Federal Commissioner of Taxation [2015] AATA 167
Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82
Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) WAR 82
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
City Clock (Australia) Limited v Primesite Outdoor Advertising Limited, unreported 950293, 9 June 1995
Commissioner of State Tax (WA) v Pollock (1993) 11WAR 64
Cook v Italiano Family Fruit Company Pty Ltd (in liq) (2010) 190 FCR 474
Copeland v Murace [2023] FCA 14
Corruption and Crime Commission of Western Australia v McCusker AO QC [2009] WASC 44
D'Ath v TNT Australia Pty Ltd [1992] 1 Qd R 369
Destec Pty Ltd v Mineral Resources Limited [2020] WASC 95
Devine v Liu [2018] NSWSC 1453
DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97
Elfic Ltd v Macks (2003) 2 Qd R 125
Emanuel Exports Pty Ltd v Department of Primary Industries and Regional Development [2023] WASCA 36
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Eskdale South Cattle Company Pty Ltd v Deputy Commissioner of Taxation [2013] FCA 1125
Fenato v Chief Commissioner of State Revenue (2010) 78 NSWLR 20
Garms v Birnzwejg (1990) 2 Qd R 336
Gerovich v Gerovich [2018] WASC 153
Hawkins v Bank of China (1992) 26 NSWLR 562
Healy v Chopping [2021] WASC 328
Litmus Australia Pty Ltd (in liq) v Canty [2006] NSWSC 196; (2006) 57 ACSR 71
Mitchell Warren Ball (in…
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- AGLC
- H2 Migration & Education Pty Ltd v Gu [2023] WASC 199
- Case
- [2023] WASC 199
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the meaning of "proceeding... under the Corporations Act" in Rule 1.3(1)(a) of the Corporations Rules, and whether the plaintiff's claims necessitated the use of Form 2 as required by Rule 2.2(1)(a). The court considered the relevant rules and authorities, including the decision in Destec Pty Ltd v Mineral Resources Limited, where it was held that a proceeding is under the Corporations Act if the claims and relief sought are sourced wholly within the Act, but not excluded if other claims and relief are also sought.
After examining the rules and relevant authorities, the court found that the plaintiff's case required the use of Form 2 supported by an affidavit. The court concluded that the plaintiff's claims, while rooted in the Corporations Act, also involved other legal principles, thus falling within the scope of Rule 2.2(1)(a) of the Corporations Rules. Consequently, the court held that the plaintiff's writ was not the appropriate originating process and ordered the plaintiff to file a Form 2 supported by an affidavit within 28 days.
The court ordered the plaintiff to file a Form 2 supported by an affidavit within 28 days from the date of the judgment. Failure to comply with this order would result in the dismissal of the plaintiff's claim. The defendant was also ordered to pay the plaintiff's costs of the application.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Order 4 r 1(a) of the SCR provides that subject to the provisions of any act and the SCR, every action must be commenced by a writ. Rule 1.3(1)(a) of the Corporations Rules is in the following terms: (1) Unless the court otherwise orders – (a) these rules apply to a proceeding in the court under the Corporations Act or the ASIC Act that is commenced on or after the commencement of these rules;(Emphasis added) Rule 2.2(1)(a) provides that:(1) Unless these rules otherwise provide, a person must make an application required or permitted by the Corporations Act to be made to the Court — (a)if the application is not made in a proceeding already commenced in the Court — by filing an originating process; Rule 2.2(3)(a) goes on to provide that an originating process must be in accordance with Form 2 and pursuant to r 2.4(1) that Form 2 must be supported by an affidavit stating the facts in support of the process and annexing a record of a search of the records maintained by ASIC in relation to the company that is the subject of the application carried out no earlier than 7 days before the originating process is filed. Accordingly, the question of which originating process is required in the present case involves consideration of first what is meant by the phrase 'under the Corporations Act' in r 1.3 of the Corporations Rules, and second an analysis of the nature of the plaintiff's case. In relation to the first issue, both parties referred me to the decision of Hill J Destec Pty Ltd v Mineral Resources Limited[17] in which her Honour considered whether a proceeding commenced by a writ of summons endorsed by a statement claim alleging that a party had breached a shareholders deed, and had engaged in oppressive conduct pursuant to s 232 of the Corporations Act, ought properly to have been commenced by a Form 2 supported by an affidavit in accordance with r 2.4 of the Corporations Rules.[17] Destec Pty Ltd v Mineral Resources Limited [2020] WASC 95. In holding that the r 2.4 of the Corporations Rules was applicable, her Honour agreed with and adopted the following views expressed by Barrett J in Litmus Australia Pty Ltd (in liq) v Canty:[18]A proceeding will be a 'proceeding … under the Corporations Act or the ASIC Act' if the claims made and relief sought have their source wholly within the relevant Act. But a proceeding will not fail to be a 'proceeding … under the Corporations Act or the ASIC Act' just because it also advances claims and seeks relief that have some other source. The first five words of r 1.3(1) are important. If a hybrid proceeding were to arise which, for some reason or other, could not conveniently be conducted in accordance with the Supreme Court (Corporations) Rules, the court itself would exclude those rules as contemplated by those opening words, at the same time making such other arrangements as were conducive to the just, cheap and quick resolution of the particular controversy.[18] Destec Pty Ltd v Mineral Resources [2020] WASC 95 [14] - [15]; Litmus Australia Pty Ltd (in liq) v Canty [2006] NSWSC 196; (2006) 57 ACSR 71 [43].