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HPM Pty Ltd v Fear

HPM Pty Ltd v Fear

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HPM PTY LTD -v- FEAR & ORS [2002] WASCA 249

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 249
Court:	THE FULL COURT (WA)
Case No:	FUL:83/2001	Heard:	2 AUGUST 2002
Coram:	MALCOLM CJ MURRAY J STEYTLER J	Delivered:	9/09/02
No of pages:	13	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
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Parties:	HPM PTY LTD CHARLES ANTHONY CANDLIN FEAR RESI-STATEWIDE MORTGAGE CORPORATION LTD ROBERT CLAUDE COOK TERENCE CORNELIUS McMANUS ROBERT HENRI DE BUF PATRICIA ANNE DE BUF REGINALD SARSFIELD FINN ELIZABETH ROSE FINN DONALD GEORGE LYSTER LEONE BEATRICE LYSTER JOHN SELSMARK ROGER LLOYD GEORGE RICHARD-COOMBES IDA ELEANOR RICHARD-COOMBES GRAEME CAMPBELL REYNOLDS LESLEY HANNAH REYNOLDS JOSEPH COCI HELEN JOY COCI ERNEST RAMPELLINI JENNIFER ANNE RAMPELLINI PETER JOE CHITTENDEN MICHAEL SKUBA MICHAEL CYRIL HALPIN GEORGE HUGH MARGETTS GWENDOLINE MARY MARGETTS TOLEEN NOMINEES PTY LTD LAVIN NOMINEES PTY LTD TUDOR COURT INVESTMENTS PTY LTD MacDOUGALL PTY LTD OREGON NOMINEES PTY LTD
Catchwords:	Corporations Appeal Practice and procedure Requirement that a body corporate not bring proceedings otherwise than by a solicitor Corporations Whether s 236 and s 237 of the Corporations Act apply to companies in liquidation Interaction between s 237 of the Corporations Law and O 4 r 3(2) of the Rules of the Supreme Court (WA)
Legislation:	Corporations Law, s 236, s 237, s 477(6), s 511 Rules of the Supreme Court (WA), O 4 r 3(2)
Case References:	Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd (2000) 22 WAR 372 Foss v Harbottle (1843) 2 Hare 461; 67 ER 189 Spokes v Grosvenor and West End Railway Terminus Hotel Co Ltd [1897] 2 QB 124 Blakeley v Cook [2001] WASCA 208 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Fibrosa Spolka Akcyjna v Fairbain Lawson Combe Barbour Ltd [1943] AC 32 Frinton & Walton Urban District Council v Walton & District Sand & Mineral Co Ltd [1938] 1 All ER 649 Little v Victoria [1998] 4 VR 596 Lloyds Bank Ltd v Bundy [1974] 3 WLR 501 Spiel v Commodity Brokers Australia Pty Ltd (in liq) (1983) 35 SASR 294

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : HPM PTY LTD -v- FEAR & ORS [2002] WASCA 249 CORAM : MALCOLM CJ

MURRAY J

STEYTLER J

HEARD : 2 AUGUST 2002 DELIVERED : 9 SEPTEMBER 2002 FILE NO/S : FUL 83 of 2001 BETWEEN : HPM PTY LTD

Appellant

AND

CHARLES ANTHONY CANDLIN FEAR

First Respondent

RESI-STATEWIDE MORTGAGE CORPORATION LTD

Second Respondent

ROBERT CLAUDE COOK

TERENCE CORNELIUS McMANUS

ROBERT HENRI DE BUF

PATRICIA ANNE DE BUF

REGINALD SARSFIELD FINN

ELIZABETH ROSE FINN

DONALD GEORGE LYSTER

LEONE BEATRICE LYSTER

JOHN SELSMARK

ROGER LLOYD GEORGE RICHARD-COOMBES

IDA ELEANOR RICHARD-COOMBES

GRAEME CAMPBELL REYNOLDS

(Page 2)

LESLEY HANNAH REYNOLDS

JOSEPH COCI

HELEN JOY COCI

ERNEST RAMPELLINI

JENNIFER…

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: [2002] WASCA 249
Decision Date: 9 SEPTEMBER 2002

CaseChat Overview and Summary

In the case of HPM Pty Ltd v Fear, the plaintiff, a body corporate in liquidation, sought to appeal a decision made by the Supreme Court of Western Australia. The dispute involved the interpretation of sections 236 and 237 of the Corporations Act, specifically whether these provisions applied to a company in liquidation. The primary issue was whether a company in liquidation could be subject to the requirement to appear through a solicitor when bringing proceedings, as mandated by section 236, and whether this requirement could be waived by the court under section 237. The plaintiff argued that as the company was in liquidation, the requirements of section 236 should not apply, and thus, the court should not have dismissed its application to proceed without a solicitor.

The court examined the interaction between section 237 of the Corporations Act, which allows for the waiver of the requirement to appear through a solicitor, and Order 4 Rule 3(2) of the Rules of the Supreme Court (WA). The court considered whether the requirement to appear through a solicitor applied to a company in liquidation and whether the court had the discretion to waive this requirement under section 237. The court found that the requirement to be represented by a solicitor applies to all bodies corporate, including those in liquidation. The court also determined that the discretion under section 237 was limited and did not extend to overriding the statutory requirement for a body corporate to be represented by a solicitor.

The court concluded that the plaintiff, as a body corporate in liquidation, was bound by the requirement to be represented by a solicitor when bringing proceedings. The court dismissed the appeal, holding that the plaintiff was not entitled to proceed without a solicitor and that the requirements of section 236 and section 237 applied to the plaintiff regardless of its status as a company in liquidation. The court's reasoning was grounded in the statutory language and the interplay between the Corporations Act and the Rules of the Supreme Court (WA). Consequently, the plaintiff's appeal was dismissed, and no further orders were made.

Orders

Orders of the court

Appeal dismissed

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

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