Hebbel Constructions Pty Limited v Bitar Pty Limited - [2018] NSWSC 1089

Supreme Court

New South Wales

Medium Neutral Citation: Hebbel Constructions Pty Limited v Bitar Pty Limited and Anor [2018] NSWSC 1089
Hearing dates: 19 June 2018
Decision date: 19 June 2018
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
Liberty to apply is not properly invoked; substantive hearing of the application will not proceed.

Catchwords: PRACTICE AND PROCEDURE – application to exercise liberty to apply pursuant to previous order made – where basis to exercise the liberty to apply has not been established – whether liberty to apply is properly invoked.
Legislation Cited: - Uniform Civil Procedure Rules 2005 (NSW) r 26.6
Category: Procedural and other rulings
Parties: Hebbel Constructions Pty Limited (Plaintiff)
Bitar Pty Limited (First Defendant)
Hebbel Constructions Pty Ltd & Bitar Pty Ltd (Second Defendant)
Representation:
Counsel:
P Wiggins (Solicitor – Plaintiff)
P E King (First Defendant)
S Golledge (Court Receiver)
Solicitors:
Paramonte Legal (Plaintiff)
Priest Legal (First Defendant)
Yates Beaggi (Court Receiver)

File Number(s): 2014/269117 (012)

JUDGMENT - EX TEMPORE (Revised 19 June 2018)

Whether liberty to restore is properly exercised

On 10 May 2018, I heard a Notice of Motion filed on 24 April 2018 by the First Defendant, Bitar Pty Ltd (“Bitar”), which applied for an order under r 26.6 of the Uniform Civil Procedure Rules 2005 (NSW) for the discharge of a Court-appointed receiver of the assets of a partnership of Hebbel Constructions Pty Ltd ("Hebbel") and Bitar and the shares in Bitar Hebbel Constructions Pty Ltd. I dismissed that application, for the reasons set out in my reasons for judgment delivered on 25 May 2018 ([2018] NSWSC 758). In doing so, I observed at paragraph 31 that:

“I am not persuaded that, at present, this matter [namely the occupation of unit 11 by Ms Anna Taouk] warrants the removal of the receiver, alone or together with other matters. … I will, however, receive liberty to Bitar to apply, since there may well be cause for complaint, and possibly cause for the receiver's removal, if the present position is permitted to continue for any substantial period without completion of a sale of unit 11 to Ms Taouk, or if she does not promptly complete that sale, to a third party.” [emphasis added]

It will immediately be noted that my observation that the position as to Ms Taouk’s occupancy of unit 11 did not warrant the removal of the receiver, alone or together with other matters, was made less than a month ago, by the judgment delivered on 25 May 2018.
By a further judgment delivered on 8 June 2018, I set out the orders which would follow from the judgment and dealt with the question of costs. I gave effect to my observation in paragraph 31 of the judgment by making an order that:

“The parties have liberty to apply on two business days' notice in respect of any further complaint arising in respect of any substantial delay by the receiver in completing the sale of unit 11, whether to…

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: [2018] NSWSC 1089
Decision Date: 19 June 2018

CaseChat Overview and Summary

The case of Hebbel Constructions Pty Limited v Bitar Pty Limited involves a dispute where the former sought to exercise a liberty to apply that had been granted under a previous court order. The application was made in the Supreme Court of New South Wales. The primary issue before the court was whether the applicant had satisfied the conditions necessary to invoke the liberty to apply as stipulated in the original order.

The court was tasked with determining if Hebbel Constructions had met the criteria required to exercise the liberty to apply. It was necessary to establish whether the circumstances that justified the previous grant of the liberty to apply had indeed occurred. The court examined the terms of the original order and the evidence provided by the applicant to assess if the basis for the liberty to apply had been properly established. The decision hinged on whether the conditions for invoking the liberty were met according to the precedent set in the initial order.

In its ruling, the court found that Hebbel Constructions had not demonstrated that the conditions for exercising the liberty to apply had been met. The evidence presented did not sufficiently align with the circumstances that would warrant such an application as outlined in the original order. Consequently, the court concluded that the applicant had not properly invoked the liberty to apply. The application was dismissed, and the court did not find it necessary to exercise its discretion to allow the application under the previous order.

The final orders of the court were that the application to exercise the liberty to apply was dismissed, with no orders as to costs. The court made it clear that the conditions required to invoke the liberty to apply had not been satisfied, and thus, the applicant's request was not granted.

Orders