Komtas Pty Ltd v Castlecity Pty Ltd

[2001] WASC 130

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   KOMTAS PTY LTD -v- CASTLECITY PTY LTD [2001] WASC 130

CORAM:   MASTER BREDMEYER

HEARD:   21 MAY 2001

DELIVERED          :   25 MAY 2001

FILE NO/S:   COR 188 of 2000

MATTER                :Corporations Law of Western Australia

and

CASTLECITY PTY LTD
(ACN 009 453 169)

BETWEEN:   KOMTAS PTY LTD (ACN 009 359 728)

Plaintiff

AND

CASTLECITY PTY LTD (ACN 009 453 169)
Defendant

Catchwords:

Application to lift stay of execution

Legislation:

Nil

Result:

Application allowed

Representation:

Counsel:

Plaintiff:     Mr I N Wilson

Defendant:     Mr L A Margaretic

Solicitors:

Plaintiff:     Ian Wilson

Defendant:     Margaretic

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

Nil

Case(s) also cited:

Nil

1. MASTER BREDMEYER:  This is an application by the applicant dated 8 May 2001 to lift a stay order granted by me on 31 October 2000.

2. On 25 October 2000 I ordered the winding up of the defendant, Castlecity Pty Ltd ("the company"), on the application of the plaintiff.  On 31 October I granted a stay of execution of that order "pending the outcome of the appeal".  On 8 December 2000 I made a further order approving that the directors of the company may perform and exercise their powers as directors of the company during the stay of the winding up of the company granted by the court on 31 October 2000".  This application was granted on the ex parte summons of Mr Joseph Tilli, a director of the company, who deposed that the appeal would be heard on 9 January 2000 and that the director's powers were necessary to enable it to deal with the company's properties to fulfil a deed of agreement entered into with the banks and/or mortgagees.  The affidavit in support, dated 7 December 2000, also stated:

   "As from the date of the granting of the stay application it was brought to the attention of the court that an agreement had been reached with the petitioning creditor and therefore the appeal process was only a formality to have the winding up order dismissed."

3. The company lodged a notice of motion for leave to appeal on 28 November 2000 (FUL 189 of 2000).  That came on for hearing before me in chambers on 9 January 2001.  Mr D P A Moen appeared for the company, on instructions from David Manera.  There was no appearance for the respondent (the plaintiff in this action).  I noted the fiat sheet:  "By consent adjourned to 22 January.  Costs reserved."  On 22 January Mr Moen again appeared for the company.  There was no appearance by the respondent/plaintiff.  I was told that the parties were negotiating a settlement.  The application was adjourned to 5 February and costs reserved.  On 5 February Mr J Tilli, a director of the company, appeared for the company.  There was no appearance by the respondent/plaintiff.  I made the following orders:  "By consent adjourned sine die".

4. In support of the plaintiff's application to set aside the stay order Mr Charles Joseph Morrone has sworn an affidavit on 8 May in which he states that the appeal has not yet been entered to date - which I add is correct.  He further states:

   "6.I have not been able to conclude and formalize an agreement between the Plaintiff and the Defendant which I consider satisfactorily provides a basis for not proceeding with the original winding up order.

   7.I am informed by Ian Wilson that Peter Tilli has inter alia sworn that

   'As from the date of the granting of the stay application it was brought to the attention of the Court that an agreement had been reached with the petitioning creditor and therefore the appeal process was only a formality to have the winding up order dismissed.'

   8.I say Mr Tilli has been playing ducks and drakes over the past few months in order to avoid any settlement that is on satisfactory terms to me.

   9.I respectfully request the stay be lifted so as to reinstate the original order that the Defendant be wound up."

5. Mr Margaretic appeared for the company.  He said he has not yet on the record and was only instructed to appear this morning.  He referred me to a letter at 33 of the applicant's book of documents filed in FUL 189 of 2000 that the plaintiff had not opposed the company's application for a stay.  That is a letter from Mr Granich, then acting for the plaintiff, to Mr David Moen.  He also sought an adjournment if I was against him to prepare and file an affidavit.  I decline to grant that.  The company has had adequate time to file an affidavit in opposition.

6. It does not matter much that the stay order was made without opposition.  The fact of the matter is that the stay was granted so that the company could prosecute its appeal and/or reach a settlement with the petitioning plaintiff.  I consider that sufficient time has elapsed and neither of these objectives have been achieved.  The appeal has not been heard and is not close to hearing.  The company has been unable to reach a settlement with the plaintiff.  I consider sufficient time has been allowed and I propose to revoke my orders made on 31 October 2000.  It follows, as a corollary, that I should also revoke my orders made on 8 December 2000.  The company is to pay the plaintiff's costs of this application to be taxed if not agreed.