Jones v Rustic Haven Sdn BHD - [2008] WASC 122

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: JONES -v- RUSTIC HAVEN SDN BHD [2008] WASC 122

CORAM: NEWNES J

HEARD: 5 MAY & 13 JUNE 2008

DELIVERED : 27 JUNE 2008

FILE NO/S: CIV 2153 of 2005

BETWEEN: MARTIN BRUCE JONES as liquidator of and agent for THE RAVENSWOOD RESORT PTY LTD (in liq) (ACN 067 679 694)
Plaintiff
AND
RUSTIC HAVEN SDN BHD
Defendant

Catchwords:

Corporations - Winding up - Proceedings under s 588FF of Corporations Act 2001 (Cth) - Application by liquidator to amend proceedings outside threeyear period in s 588FF(3) to include further claims - Power of court to amend proceedings under s 588FF - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 588FF, s 588W

Result:

Application to amend refused

Category: B

Representation:

Counsel:

Plaintiff: Mr G D Cobby
Defendant: Mr D K Barker

Solicitors:

Plaintiff: Christensen Vaughan
Defendant: Chalmers Legal Studio Pty Ltd

Case(s) referred to in judgment(s):

Davies v Chicago Boot Co Pty Ltd (No 2) [2007] SASC 12
Gordon v Tolcher [2006] HCA 62
Rambaldi v Dallbrook Pty Ltd [2003] VSC 163
Rodgers v Commissioner of Taxation (1998) 88 FCR 61
Star v National Australia Bank Ltd (1999) 150 FLR 119
Tolcher v Capital Finance Australia Ltd [2005] FCA 108

NEWNES J: This is an application for leave to amend the statement of claim, in accordance with a minute of proposed amended statement of claim dated 19 June 2007. The proposed amendments include the addition of a new claim under s 588W of the Corporations Act 2001 (Cth) (the Act) by the plaintiff, but in this instance in his capacity as liquidator of RRCM Pty Ltd (RRCM).

The application under s 588FF

I will deal first with the proposed amendments by which it is sought to add further claims under s 588FF of the Act to the existing proceedings.
The plaintiff was appointed liquidator of The Ravenswood Resort Pty Ltd (Ravenswood) on 23 June 2003. In the existing statement of claim, the plaintiff, as liquidator of Ravenswood, alleges that, on 5 June 2003, the then receiver and manager of Ravenswood caused or permitted certain land to be transferred to the defendant without consideration. It is pleaded that the transfer of the land was an uncommercial transaction within the meaning of s 588FB of the Act. The plaintiff seeks a declaration that the plaintiff has a caveatable interest in the land and an order that the defendant transfer the land to Ravenswood, or alternatively, seeks damages.
The plaintiff now seeks to make substantial amendments to the statement of claim. The amendments are not particularly easy to follow. Their clarity has perhaps not been assisted by the fact that, as I was informed by counsel for the plaintiff, they have been substantially (if not wholly) extracted from some other pleading in proceedings between the current parties.
The proposed amendments relate to various transactions which are said to have occurred in late 2001 and early 2002 in relation to the…

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 Jones v Rustic Haven Sdn BHD

Details

AGLC: Jones v Rustic Haven Sdn BHD [2008] WASC 122
Case: [2008] WASC 122
Decision Date: 27 JUNE 2008

CaseChat Overview and Summary

The matter of Jones v Rustic Haven Sdn BHD involved proceedings under section 588FF of the Corporations Act 2001 (Cth). The liquidator, Jones, applied to the Federal Court of Australia to amend the winding up proceedings to include further claims against the respondent, Rustic Haven Sdn BHD. The central issue was whether the court had the authority to allow the amendment of the winding up proceedings outside the three-year period specified in section 588FF(3). This decision hinged on whether the particular facts of the case warranted such an amendment.

The court examined the statutory framework and the purpose behind the three-year limitation period in section 588FF(3). It considered whether the amendment would frustrate the purpose of the limitation period and whether there were any exceptional circumstances that justified permitting the amendment. The court found that the power to amend proceedings under section 588FF is discretionary and must be exercised with consideration of the statute's objectives. Given the statutory framework and the absence of exceptional circumstances, the court concluded that the amendment would not be permitted as it would undermine the statutory scheme's intended purpose.

In reaching its decision, the court emphasised that the application to amend the winding up proceedings was to be determined on the unique facts of each case. It held that the three-year period was a critical component of the statutory scheme designed to ensure timely resolution of winding up proceedings. The court found that the liquidator's application did not present exceptional circumstances that warranted a departure from the statutory limitation. Therefore, the application to amend the winding up proceedings was refused.

Orders

Orders of the court

Application to amend refused

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.