Hansen v Namoi Enterprises - [2004] NSWSC 65

CITATION: Hansen v Namoi Enterprises [2004] NSWSC 65

HEARING DATE(S): 5 February 2004

JUDGMENT DATE:
19 February 2004

JURISDICTION:
Equity

JUDGMENT OF: Master Macready at 1

DECISION: I dismiss the summons and order the plaintiff to pay the defendant's costs

CATCHWORDS: CORPORATIONS LAW -- plaintiff seeks order pursuant to s 500(2) of the Corporations Act 2001 (Cth) -- defendant company being wound up -- no proof of debt provided by the plaintiff -- does the plaintiff's claim rank in priority to normal unsecured creditors -- held that the plaintiff's claim would not have priority -- summons dismissed -- INDUSTRIAL LAW -- plaintiff seeks leave to continue proceedings in the Industrial Relations Commission -- whether an award under s 106(5) of the Industrial Relations Act1996 (NSW) gives rise to a provable debt -- is the defendant a necessary party before the Commission -- held not necessary for the defendant to be a party before the Commission -- leave refused to proceed against the defendant

LEGISLATION CITED: Corporations Act 2001 (Cth)
Industrial Relations Act 1996 (NSW)
Associations Incorporation Act 1984 (NSW)

CASES CITED: Brown v Rezitis (1970) 127 CLR 157
Fisher v Madden [2002] NSWCA 28; (2002) 54 NSWLR 179; (2002) 41 ACSR 1; (2002) 20 ACLC 753; (2002) 114 IR 119
Re WA Brown & Sons Pty Limited and The Companies Act 1961 [1964-65] NSWR 575
Reich v Client Server Professionals of Australia Pty Limited (No 2) [2000] NSWIR Comm 196
Silberman v One.Tel Limited (No 2) [2002] NSWSC 295; 2002) 167 FLR 274; (2002) 20 ACLC 846

PARTIES :
Alan Edward Hansen v Namoi Enterprises Inc (In Liquidation)

FILE NUMBER(S): SC 4493/03

COUNSEL: J Berwick - plaintiff
A Searle and SEJ Prince - defendant

SOLICITORS: Craddock Murray Neumann Solicitors - plaintiff
H J Palmer & Co Solicitors - defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Thursday 19 February 2004

4493/03 Alan Edward Hansen v Namoi Enterprises Inc (In Liquidation)

JUDGMENT

1 MASTER: This is the hearing of an application filed on 25 August 2003 for an order pursuant to s 500(2) of the Corporations Act 2001 (Cth) that the plaintiff be at liberty to continue two proceedings in the Industrial Relations Commission of New South Wales which seek relief pursuant to s 106 of the Industrial Relations Act 1996 (NSW) against his former employer, the defendant.

Relevant history

2 The defendant company was incorporated as an association under the Associations Incorporation Act 1984 (NSW). It operated a sheltered workshop employing physically and mentally handicapped people at Narrabri. The defendant was funded largely by government grants and to a lesser extent, by the sale of waste paper, plastic and glass bottles which were recycled. In addition, it also made artefacts for sale.

3 The plaintiff was employed as a manager pursuant to an agreement made on 8 March 2002 for a period of 3 years ending 25 February 2005.

4 The defendant ceased trading on 31 July…

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 Hansen v Namoi Enterprises

Details

AGLC: Hansen v Namoi Enterprises [2004] NSWSC 65
Case: [2004] NSWSC 65
Decision Date: 19 February 2004

CaseChat Overview and Summary

In Hansen v Namoi Enterprises, the plaintiff sought an order from the court under section 500(2) of the Corporations Act 2001 (Cth) due to the winding up of the defendant company. The plaintiff, who had not provided any proof of debt, argued that their claim should rank in priority to normal unsecured creditors. The court had to determine the legal issues surrounding the priority of the plaintiff's claim and whether the plaintiff's claim could be ranked in priority over other unsecured creditors.

The court examined the statutory provisions and decided that the plaintiff's claim would not have priority over the claims of normal unsecured creditors. The court held that, in the absence of a proof of debt, the plaintiff's claim did not warrant priority treatment under the relevant section of the Corporations Act. Additionally, the court addressed the plaintiff's request for leave to continue proceedings in the Industrial Relations Commission, which pertained to an award under section 106(5) of the Industrial Relations Act 1996 (NSW). The court found that the defendant was not a necessary party before the Commission and, therefore, refused the plaintiff's request for leave to proceed against the defendant.

Consequently, the court dismissed the plaintiff's summons seeking priority over unsecured creditors and also denied the plaintiff's request for leave to continue proceedings in the Industrial Relations Commission. The court's decision was based on the interpretation of statutory provisions and the necessity of parties in proceedings before the Commission. The plaintiff's claim for priority treatment and leave to proceed against the defendant were both unsuccessful.

Orders