Kozlowski v JSBG Developments Pty Ltd - [2010] NSWSC 1020

CITATION: Kozlowski v JSBG Developments Pty Ltd [2010] NSWSC 1020

HEARING DATE(S): 31 August 2010

JUDGMENT DATE :
31 August 2010

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 31 August 2010

DECISION: Application for adjournment refused.

CATCHWORDS: CORPORATIONS – application for adjournment of winding up proceedings and extension of time under Corporations Act 2001 (Cth), s 459R – application for adjournment refused –where plaintiff seeks order to wind up defendant for non-compliance with statutory demand – statutory demand required payment of judgment debt – basis of adjournment is pending appeal from unsuccessful application to set aside judgment debt – no evidence justifying orders under s 459R – application to set aside statutory demand did not raise genuine dispute about judgment debt – no application for leave under s 459S to oppose winding up application on ground of genuine dispute about judgment debt – public interest in matter proceeding on fixed date

LEGISLATION CITED: Corporations Act 2001 (Cth)
Building and Construction Industry Payments Act 2004 (Qld)

CATEGORY: Procedural and other rulings

PARTIES: Plaintiff: Wlodzimierz Antoni Kozlowski
Defendant: JSBG Developments Pty Ltd

FILE NUMBER(S): SC 2010/114197

COUNSEL: Plaintiff: n/a
Defendant: G McDonald

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Tuesday, 31 August 2010

2010/114197 Wlodzimierz Antoni Kozlowski v JSBG Developments Pty Ltd

JUDGMENT

1 HIS HONOUR: This is an application to vacate a hearing date in proceedings listed for hearing before me tomorrow. The plaintiff, by originating process filed on 7 May 2010, seeks an order that the defendant be wound up. The originating process was returnable before the Registrar on 21 June 2010. By consent the proceedings were adjourned to 19 July 2010. On 19 July 2010, orders were made for the service by the plaintiff and the defendant of the affidavits to be relied on, and the proceedings were fixed for hearing.

2 On 30 August 2010, that is to say, two days before the date fixed for hearing, counsel for the defendant wrote to the Associate to the Corporations List Judge, Barrett J, stating that the parties had agreed to adjourn the matter and attached consent orders. The correspondence and consent orders were forwarded to me, and I arranged for the matter to be listed today if the parties were seeking to vacate the hearing date. The short minutes of order signed for each party provided:

1 Adjourn Winding Up hearing until 15 November 2010

2 Extend time under Section 459R Corporations Act 2001

3 No orders as to costs

3 Section 459R of the Corporations Act 2001 (Cth) requires applications for winding up to be determined within six months after the application is made. That period may be extended only if the Court is satisfied that special circumstances justify the extension. There was no evidence provided that would justify the making of the orders sought under s 459R. If the proceedings were adjourned until 15 November 2010, as is sought, without an extension of time under s…

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: [2010] NSWSC 1020
Decision Date: 31 August 2010

CaseChat Overview and Summary

The matter before the court was an application by the plaintiff, Kozlowski, for an adjournment of winding up proceedings and an extension of time under section 459R of the Corporations Act 2001 (Cth). The defendant, JSBG Developments Pty Ltd, had been served with a statutory demand, requiring payment of a judgment debt. Kozlowski sought to wind up the defendant due to non-compliance with the statutory demand. The application for adjournment was based on an appeal from a previous unsuccessful application to set aside the judgment debt.

The legal issues before the court were whether the application for adjournment and extension of time should be granted under section 459R of the Corporations Act. Specifically, the court had to consider whether there was evidence justifying the orders and whether the application to set aside the statutory demand raised a genuine dispute about the judgment debt. Additionally, the court needed to determine if there was an application for leave under section 459S to oppose the winding up application on the ground of a genuine dispute about the judgment debt. The public interest in the matter proceeding on a fixed date was also considered.

The court found that there was no evidence justifying the orders under section 459R of the Corporations Act. The application to set aside the statutory demand did not raise a genuine dispute about the judgment debt. Moreover, there was no application for leave under section 459S to oppose the winding up application on the ground of a genuine dispute about the judgment debt. Given the public interest in matters proceeding on a fixed date, the court refused the application for adjournment. Consequently, the winding up application proceeded.

The court made an order refusing the application for adjournment and extension of time. The winding up proceedings against JSBG Developments Pty Ltd were to proceed as scheduled. The court emphasised the importance of adhering to the fixed date for such proceedings to maintain public interest and ensure the efficient administration of justice.

Orders