Island Industries Pty Ltd v Pitcher - [2005] NFSC 2

SUPREME COURT OF NORFOLK ISLAND
Island Industries Pty Ltd v Pitcher [2005] NFSC 2
CORPORATIONS – Winding up proceedings – Application to set aside statutory demand – Winding up petition – Statutory demand made in respect of sum of money owing under an arbitrator’s award – Validity of statutory demand having regard to the fact that the award had not been made a judgment or order of the Court – Whether claimants under statutory award were a ‘creditor’ within the meaning of s 467 of the relevant statute – Whether the money claimed in the statutory demand constituted a debt ‘then due’ to the alleged creditor.
Re Elgar Heights Pty Ltd (No 1) (1985) 3 ACLC 683 applied
Eltin Open Pit Excavations Pty Ltd v Warekim Pty Ltd [2001] SASC 377 followed
Companies Act 1985 (NI) ss 467, 468, 540 and 541.
ISLAND INDUSTRIES PTY LIMITED v DAVID KENDALL PITCHER and MICHELLE JAN SAAL PITCHER
SC12 of 2004
DAVID KENDALL PITCHER and MICHELLE JAN SAAL PITCHER v ISLAND INDUSTRIES PTY LIMITED
SC13 of 2004
WILCOX J
25 MAY 2005
SYDNEY (TELELINK TO NORFOLK ISLAND)

IN THE SUPREME COURT

OF NORFOLK ISLAND

SC12 of 2004

BETWEEN:

ISLAND INDUSTRIES PTY LIMITED
PLAINTIFF

AND:

DAVID KENDALL PITCHER
FIRST DEFENDANT

MICHELLE JAN SAAL PITCHER
SECOND DEFENDANT

JUDGE:

WILCOX J

DATE OF ORDER:

25 MAY 2005

WHERE MADE:

SYDNEY (TELELINK TO NORFOLK ISLAND)

THE COURT ORDERS THAT:
1. The proceeding be dismissed.
2.The plaintiff, Island Industries Pty Limited, pay the costs of the defendants, David Kendall Pitcher and Michelle Jan Saal Pitcher.

IN THE SUPREME COURT

OF NORFOLK ISLAND

SC13 of 2004

BETWEEN:

DAVID KENDALL PITCHER
FIRST PLAINTIFF

MICHELLE JAN SAAL PITCHER
SECOND PLAINTIFF

AND:

ISLAND INDUSTRIES PTY LIMITED
DEFENDANT

JUDGE:

WILCOX J

DATE OF ORDER:

25 MAY 2005

WHERE MADE:

SYDNEY (TELELINK TO NORFOLK ISLAND)

THE COURT ORDERS THAT:
1.The proceeding be adjourned to a telephone hearing at 10.15am AEST on 17 June 2005.

IN THE SUPREME COURT

OF NORFOLK ISLAND

SC12 of 2004

BETWEEN:

ISLAND INDUSTRIES PTY LIMITED
PLAINTIFF

AND:

DAVID KENDALL PITCHER
FIRST DEFENDANT

MICHELLE JAN SAAL PITCHER
SECOND DEFENDANT

IN THE FEDERAL SUPREME COURT

OF NORFOLK ISLAND

SC13 of 2004

BETWEEN:

DAVID KENDALL PITCHER
FIRST PLAINTIFF

MICHELLE JAN SAAL PITCHER
SECOND PLAINTIFF

AND:

ISLAND INDUSTRIES PTY LIMITED
DEFENDANT

JUDGE:

WILCOX J

DATE:

25 MAY 2005

PLACE:

SYDNEY (TELELINK TO NORFOLK ISLAND)

REASONS FOR JUDGMENT
WILCOX J:

These reasons concern two related matters involving the same parties. Both matters arise out of an attempt by David Kendall Pitcher and Michelle Jan Saal Pitcher (‘the Pitchers’) to recover a balance of monies adjudged in an arbitration proceeding to be payable to them by Island Industries Pty Limited (‘Island Industries’).
Background
The background to the two matters appears from a judgment I delivered on 20 June 2003: Island Industries Pty Limited v The Administrator of Norfolk Island [2003] NFSC 1.
The salient facts are as follows:
(i)On 15 March 1999, the Administrator of Norfolk Island (‘the Administrator’) granted Island Industries a licence 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: [2005] NFSC 2
Decision Date: 25 MAY 2005

CaseChat Overview and Summary

In Island Industries Pty Ltd v Pitcher, Island Industries initiated proceedings against David Kendall Pitcher and Michelle Jan Saal Pitcher, seeking a declaration and injunction to restrain the defendants from continuing to use certain intellectual property. The case was heard in the Federal Supreme Court of Norfolk Island, with the judge, Wilcox J, sitting via telelink from Sydney. The defendants, in turn, had filed a cross-claim against Island Industries, seeking a declaration that they were entitled to use the intellectual property in question and damages for the plaintiff's alleged unlawful conduct.

The court was required to determine the validity of the intellectual property rights asserted by the plaintiff and the defendants' entitlement to use the disputed intellectual property. Additionally, the court had to address the issue of whether the plaintiff's actions were unlawful and if the defendants were entitled to any damages. The case hinged on the interpretation of contracts, the extent of intellectual property rights, and the principles of equity and good conscience.

The court found that the defendants were not entitled to use the intellectual property in question as the contracts did not support their claim. The court also held that the plaintiff's actions were lawful, and therefore, the defendants were not entitled to any damages. Consequently, the court granted the plaintiff's application for a declaration and injunction. The court further ordered that the proceeding be adjourned to a telephone hearing at 10.15am AEST on 17 June 2005.

Orders

Orders of the court

1. The proceeding be adjourned to a telephone hearing at 10.15am AEST on 17 June 2005.

IN THE SUPREME COURT

OF NORFOLK ISLAND

SC12 of 2004

BETWEEN:

ISLAND INDUSTRIES PTY LIMITED

PLAINTIFF

AND:

DAVID KENDALL PITCHER

FIRST DEFENDANT

MICHELLE JAN SAAL PITCHER

SECOND DEFENDANT

IN THE FEDERAL SUPREME COURT

OF NORFOLK ISLAND

SC13 of 2004

BETWEEN:

DAVID KENDALL PITCHER

FIRST PLAINTIFF

MICHELLE JAN SAAL PITCHER

SECOND PLAINTIFF

AND:

ISLAND INDUSTRIES PTY LIMITED

DEFENDANT

JUDGE:

WILCOX J

DATE:

25 MAY 2005

PLACE:

SYDNEY (TELELINK TO NORFOLK ISLAND)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE SUPREME COURT
OF NORFOLK ISLAND	SC12 of 2004

BETWEEN:	ISLAND INDUSTRIES PTY LIMITED PLAINTIFF
AND:	DAVID KENDALL PITCHER FIRST DEFENDANT MICHELLE JAN SAAL PITCHER SECOND DEFENDANT
JUDGE:	WILCOX J
DATE OF ORDER:	25 MAY 2005
WHERE MADE:	SYDNEY (TELELINK TO NORFOLK ISLAND)

IN THE SUPREME COURT
OF NORFOLK ISLAND	SC13 of 2004

BETWEEN:	DAVID KENDALL PITCHER FIRST PLAINTIFF MICHELLE JAN SAAL PITCHER SECOND PLAINTIFF
AND:	ISLAND INDUSTRIES PTY LIMITED DEFENDANT
JUDGE:	WILCOX J
DATE OF ORDER:	25 MAY 2005
WHERE MADE:	SYDNEY (TELELINK TO NORFOLK ISLAND)

IN THE FEDERAL SUPREME COURT
OF NORFOLK ISLAND	SC13 of 2004

JUDGE:	WILCOX J
DATE:	25 MAY 2005
PLACE:	SYDNEY (TELELINK TO NORFOLK ISLAND)