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Horne v Retirement Guide Management Pty Ltd

Horne v Retirement Guide Management Pty Ltd

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Case Copied 16 March 2017 79 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0019

STIRLING LINDLEY HORNE and PETR VRSECKY (in their capacity as joint and several liquidators of AUSTRALIAN PROPERTY CUSTODIAN HOLDINGS LIMITED (ACN 095 474 436) (RECEIVERS AND MANAGERS APPOINTED) (CONTROLLERS APPOINTED) (IN LIQUIDATION)) & ORS (according to the attached schedule)	Applicants
v
RETIREMENT GUIDE MANAGEMENT PTY LTD (ACN 125 225 390) & ORS (according to the attached schedule)	Respondents

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JUDGES:	WARREN CJ, TATE and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 April 2016
DATE OF JUDGMENT:	16 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 47
JUDGMENT APPEALED FROM:	[2015] VSC 745 (Judd J)

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CORPORATIONS – Corporations Act 2001 (Cth) s 588FF – Supreme Court (Corporations) Rules 2013 rr 1.10 and 2.7 – Supreme Court (General Civil Procedure) Rules 2015 r 3.02.

PRACTICE AND PROCEDURE – Extension of time for service – Whether Court has power under Supreme Court (General Civil Procedure) Rules 2015 r 3.02 to extend time for service in Supreme Court (Corporations) Rules 2013 r 2.7 – Interpretation of Supreme Court (Corporations) Rules 2013 rr 1.10 and 2.7 – Does Supreme Court (Corporations) Rules 2013 r 2.7 'otherwise provide' (within the meaning or r 1.10) for the extension of time for service to preclude reliance on Supreme Court (General Civil Procedure) Rules2015 r 3.02?

PRACTICE AND PROCEDURE – Discretion to extend time for service – Whether judge erred in exercise of discretion.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr A C Archibald QC with Mr N Evans	Johnson Winter & Slattery
For the First and Third to Ninth Respondents	Mr N J Young QC with Mr T Woodward SC and Dr O Bigos	Minter Ellison
For the Second Respondent	Mr M S Osborne QC with Mr J P Tomlinson	SBA Law

WARREN CJ
TATE JA
BEACH JA:

TABLE OF CONTENTS

Introduction
The relevant legislation and rules
The history of the proceeding
Commencement of proceedings
Application for extension of time (Randall AsJ)
Subsequent events
Respondents’ awareness of the Voidable Transactions Proceeding
Respondents’ application to set aside extension orders (Efthim AsJ)
Appeal from Efthim AsJ (Judd J)

Summary of principles
Decision on power
Decision on discretion

The grounds of appeal
Nature of appeals
The question of power
Parties’ submissions

Applicants’ submissions
Lend Lease respondents’ submissions
Second respondent’s submissions

Analysis
The question of discretion
Parties’ submissions

Applicants’ submissions
Lend Lease respondents’ submissions
Second respondent’s submissions

Analysis

Conclusion

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The central issue in this application for leave to appeal is whether time could and should have been extended for the service of an originating process under the Supreme Court (Corporations) Rules 2013 (‘Corporations Rules’) by reference to the Supreme Court (General Civil Procedure) Rules 2015 (‘GeneralCivil Procedure Rules’). Ultimately, we conclude that the Court has power under the General Civil Procedure Rules to grant an extension of time to effect service arising under the Corporations Rules. We consider that Judd J was in error in concluding that there was no…

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: [2017] VSCA 47
Decision Date: 16 March 2017

CaseChat Overview and Summary

The case of Horne v Retirement Guide Management Pty Ltd was heard in the Supreme Court of Victoria. The dispute between the parties revolved around whether the court had the authority to extend the time for service under the Supreme Court (General Civil Procedure) Rules 2015, specifically rule 3.02, in circumstances where the Supreme Court (Corporations) Rules 2013 rule 2.7 seemingly precluded such an extension. The primary issue before the court was whether the Supreme Court (Corporations) Rules 2013 rule 2.7 'otherwise provided' for the extension of time for service, thereby excluding the application of the Supreme Court (General Civil Procedure) Rules 2015 rule 3.02. The court was also tasked with determining if the judge had exercised the discretion to extend the time for service appropriately.

The court examined the language of the relevant rules to ascertain whether the Supreme Court (Corporations) Rules 2013 rule 2.7 'otherwise provided' for the extension of time for service. The court found that rule 2.7 did not explicitly address the extension of service time, hence it did not 'otherwise provide' in a manner that would preclude reliance on rule 3.02 of the Supreme Court (General Civil Procedure) Rules 2015. The court held that the Supreme Court (General Civil Procedure) Rules 2015 rule 3.02 could be invoked to extend the time for service under the circumstances presented. Furthermore, the court reviewed the exercise of discretion by the judge and concluded that the judge had not erred in deciding to extend the time for service. The decision was grounded in a balanced consideration of the relevant factors and the principles of procedural fairness.

The outcome of the case was that the Supreme Court had the power to extend the time for service under the Supreme Court (General Civil Procedure) Rules 2015 rule 3.02, despite the provisions of the Supreme Court (Corporations) Rules 2013. The court upheld the judge’s discretion in extending the time for service, finding no error in the exercise of that discretion. This decision clarifies the interplay between the two sets of rules and affirms the court’s ability to grant extensions of time in appropriate circumstances.

Orders