Jakovich v 3 Moon Design Pty Ltd - [2022] WASC 278

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   JAKOVICH -v- 3 MOON DESIGN PTY LTD [2022] WASC 278
CORAM:   ACTING MASTER MCDONALD
HEARD:   26 JULY 2022
DELIVERED          :   25 AUGUST 2022
PUBLISHED           :   25 AUGUST 2022
FILE NO/S:   COR 95 of 2022
BETWEEN:   RENATO JAKOVICH
Plaintiff
AND
3 MOON DESIGN PTY LTD
Defendant

Catchwords:

Corporations - Application for leave pursuant to s 500(2) of the Corporations Act 2001 (Cth) - Provision of information and production of documents - Leave granted

Legislation:

Corporations Act 2001 (Cth), s 500(2)

Result:

Application allowed

Category: B

Representation:

Counsel:

Plaintiff	:	In person
Defendant	:	No appearance

Solicitors:

Plaintiff	:	In person
Defendant	:	No appearance

Cases referred to in decision:

Australian Competition and Consumer Commission v Artorios Ink Co Pty Ltd [2013] FCA 753
Boase v Axis International Management Pty Ltd [No 2] [2012] WASC 344
Bol v Coolgardie Minerals Ltd (Receiver and Manager Appointed) (In Liq) [2021] WASC 255.
Latimer v Cutwood Panels Pty Ltd (in liq) [2012] WASC 408
Zoll Medical Australia, in the matter of Cardiac Defibrillators Australia Pty Ltd (in liq) v Cardiac Defibrillators Australia Pty Ltd (in liq)[2022] FCA 167

ACTING MASTER McDONALD:

This is an application made pursuant to s 500(2) of the Corporations Act 2001 (Cth). The plaintiff seeks to be granted leave nunc pro tunc to proceed with an action in the State Administrative Tribunal referred under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the SAT proceedings).
For the reasons that follow, I grant leave to proceed with the SAT proceedings subject to conditions.

The application and factual background

The application was made by originating process filed on 3 June 2022. The application is supported by an affidavit sworn on 26 May 2022 by Renato Jakovich (First Jakovich Affidavit),[1] the plaintiff in this application and the applicant in the SAT proceedings.
[1] The affidavit does not comply with Order 37 rule 2 of the Rules of the Supreme Court 1971 (WA) in that the paragraphs are not numbered and the attachments have not been given page numbers so I have adopted the name of the attachment given to it in the Index. The page numbers are the page numbers of the attachment.
At the date of the hearing Mr Jakovich had not filed a company search of ASIC's records of the defendant as is required rule 2.4(2) of the Supreme Court (Corporations) (WA) Rules 2004 (WA). An affidavit annexing the search of ASIC's records was sworn and filed on 8 August 2022 by Mr Jakovich (the Second Jakovich Affidavit).
The following matters are deposed to by Mr Jakovich or understood by reference to the attachments to Mr Jakovich's affidavits.
Mr Jakovich deposes that he entered into building contracts with both the defendant and Nami Construction Pty Ltd.[2] The defendant and Nami Construction Pty Ltd are named the first and second respondents, respectively, in the SAT proceedings. The defendant was in the business of project management. The defendant prepared…

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: [2022] WASC 278
Decision Date

CaseChat Overview and Summary

Renato Jakovich brought an application against 3 Moon Design Pty Ltd in the Supreme Court of Western Australia. Mr Jakovich seeks leave to proceed with an action in the State Administrative Tribunal under the Building Services (Complaint Resolution and Administration) Act 2011. The defendant is in liquidation and leave is required under s 500(2) of the Corporations Act 2001 (Cth). Mr Jakovich entered into a building contract with the defendant. He made a complaint to the Building Commissioner and the matter was referred to the State Administrative Tribunal. The defendant went into liquidation and Mr Jakovich seeks leave to proceed against the defendant to obtain documents to assist in the State Administrative Tribunal proceedings. The court was required to decide whether the plaintiff should be granted leave to proceed against the defendant. The court considered the relevant principles in deciding whether leave should be granted. The court found that there was a serious question to be tried and that leave should be granted to obtain the documents to assist in the State Administrative Tribunal proceedings. The court granted leave subject to conditions.

Orders