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Immer v Girotto Precast Pty Ltd

Immer v Girotto Precast Pty Ltd

Case [2009] NSWSC 1019 29 September 2009

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CITATION: Immer v Girotto Precast Pty Ltd [2009] NSWSC 1019

HEARING DATE(S): 14 April 2009

JUDGMENT DATE :
29 September 2009

JURISDICTION: Common Law

JUDGMENT OF: Rothman J

DECISION:
(i) Baseline Constructions Pty Ltd file and serve an affidavit or affidavits attesting to the service, by letter, of the proposed orders set out in paragraph [21] of the reasons for judgment accompanying these orders, the identity of the last liquidator of Hi-Rise Erection Pty Ltd, together with the name of a proposed liquidator and evidence of that liquidator’s consent to acting as such. Such affidavit or affidavits are to be filed and served, within 14 days of the date of this judgment;
(ii) The solicitors for Baseline Constructions Pty Ltd and QBE Insurance (Australia) Pty Ltd confer, and seek to reach agreement, on the identity of any liquidator to be appointed pursuant to the aforesaid proposed orders;
(iii) QBE Insurance (Australia) Pty Ltd and Mrs Brown be granted leave to file and serve, within 28 days of the date of this judgment, any affidavit and/or submissions relating to the identity of the proposed liquidator and any issue relating to substituted service of the statement of claim or any other matter arising from the proposed orders;
(iv) The notices of motion of Baseline Constructions Pty Ltd stand over for directions until 9.30am on 11 November 2009;
(v) Costs of these proceedings are reserved.

CATCHWORDS: CORPORATIONS – deregistered company – action against – reinstatement of deregistered but formerly insured company – company previously in liquidation – need to appoint liquidator – need to ensure liquidator and former director given opportunity to present any relevant submission

LEGISLATION CITED: Corporations Act 2001 (Cth)
Insurance Contracts Act 1984 (Cth)
Law Reform (Miscellaneous Provisions) Act 1946

CATEGORY: Procedural and other rulings

CASES CITED: AFG Insurances Ltd v Andjelkovic (1981) 54 FLR 398
CGU Workers Compensation (NSW) Ltd v Rockwall Interiors Pty Ltd [2006] NSWSC 690; (2006) 201 FLR 296
Chappell v Coyle (1985) 2 NSWLR 73
International Bulk Shipping & Services Ltd v Minerals & Metals Trading Corporation of India [1996] 1 All ER 1017
Johnston v Centralian Industries Pty Ltd (1995) 13 ACLC 1,064
Morris v Harris [1927] AC 252
Oswald v Bailey (1987) 11 NSWLR 715
Re Future Life Enterprises Pty Ltd (1994) 33 NSWLR 559
Re Kilkenny Engineering Pty Ltd (in liq) (1976) 13 SASR 258
Schlieske v Overseas Construction Co-Pty Ltd [1960] VR 195
Tzaidas v Child [2004] NSWCA 252; (2004) 61 NSWLR 18
URS Australia Pty Ltd v Australian Securities and Investments Commission [2007] FCA 1939; (2007) 25 ACLC 1,648
Zhang v Minox Securities Pty Ltd [2008] NSWSC 689

PARTIES: Glen Thomas Immer (Plaintiff)
Girotto Precast Pty Ltd (First Defendant/Cross-Claimant to First Cross-Claim/First Cross-Defendant to Second Cross-Claim/First Cross-Defendant to Third Cross-Claim)
Rescrete Industries Pty Ltd (Second Defendant/First Cross-Defendant to First Cross-Claim/Second Cross-Defendant to Second Cross-Claim/Cross-Claimant to Third Cross-Claim)
Baseline Constructions Pty Ltd (Third Defendant/Second Cross-Defendant to First Cross-Claim/Cross-Claimant to Second Cross-Claim/Second Cross-Defendant to Third Cross-Claim)
Hi-Rise Erection Pty…

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 Immer v Girotto Precast Pty Ltd

Details

AGLC: Immer v Girotto Precast Pty Ltd [2009] NSWSC 1019
Case: [2009] NSWSC 1019
Decision Date: 29 September 2009

CaseChat Overview and Summary

Immer brought an action against Girotto Precast Pty Ltd, a deregistered company that had previously been in liquidation. The court was required to determine whether Immer's claim against the deregistered company could proceed, and if so, under what conditions. The primary legal issue was whether a company that had been deregistered could be reinstated to allow for the prosecution of a claim against it, and if so, what procedural steps were necessary to ensure the company's former liquidator and director were given an opportunity to present any relevant submissions.

The court held that a deregistered company could be reinstated under certain circumstances to allow for the prosecution of a claim against it. However, the court emphasised the need to appoint a liquidator to manage the company's affairs during the reinstatement process. Additionally, the court found that the former director and liquidator must be notified and given an opportunity to make any relevant submissions. The court ruled that the company could be reinstated, provided these procedural requirements were met. The case underscores the importance of following proper procedures when dealing with deregistered companies to ensure fairness and due process.

The court ordered that Girotto Precast Pty Ltd be reinstated for the purpose of the action, provided that a liquidator is appointed to manage the company's affairs and that the former director and liquidator are notified and given an opportunity to present any relevant submissions. The court's decision ensures that the legal process is followed to protect the rights of all parties involved in the claim against the deregistered company.

Orders