Kyle House Pty Ltd v ACN 000 016 213 Pty Ltd - [2007] NSWSC 224

CITATION: Kyle House Pty Ltd V ACN 000 016 213 Pty Ltd [2007] NSWSC 224

HEARING DATE(S): 12/03/07

JUDGMENT DATE :
15 March 2007

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Leave to amend refused

CATCHWORDS: CORPORATIONS - voluntary administration - deed of company arrangement - debt action by landlord against tenant for rent - tenant executed deed of company arrangement - landlord seeks leave to amend to claim order varying deed of company arrangement so that it does not apply to debt for rent - deed of company arrangement terminated - therefore nothing extant capable of being varied

LEGISLATION CITED: Corporations Act 2001 (Cth), Part 5.3A, ss.444A(5), 444D(1), 445A, 445C(c), 445G(4), 445H, 447A
Corporations Regulations 2001 (Cth), reg 5.3A.06, Schedule 8A clause 12

CASES CITED: Arcfab Pty Ltd v Boral Ltd (2002) 43 ACSR 573
Cresvale Far East Ltd v Cresvale Securities Ltd (2001) 37 ACSR 394
Re Pasminco Ltd (2003) 45 ACSR 1

PARTIES: Kyle House Pty Limited - Plaintiff
ACN 000 213 Pty Limited - Defendant

FILE NUMBER(S): SC 4937/06

COUNSEL: Mr G.M. Drew - Plaintiff
Mr J.T. Johnson - Defendant

SOLICITORS: Danny Sankey - Plaintiff
Watson Mangioni Lawyers Pty Limited - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

THURSDAY, 15 MARCH 2007

4937/06 KYLE HOUSE PTY LIMITED v ACN 000 016 213 PTY LTD

JUDGMENT

1 The question before me is whether the plaintiff should be given leave to amend its statement of claim filed on 21 September 2006. That question is posed by the plaintiff’s interlocutory process filed on 20 February 2007.

2 By the statement of claim, the plaintiff sues the defendant for unpaid rent for the period July 2005 to September 2006 for shop premises in the City of Sydney, plus interest. The rent is said to have become owing, due and payable under a lease dated 29 October 2001 between the plaintiff as lessor and the defendant as lessee.

3 By its defence filed on 30 November 2006, the defendant pleads, in summary, that

Corporations Act

(b) on 4 June 2004, a meeting of creditors of the defendant resolved that the defendant execute a deed of company arrangement;

(c) on 25 June 2004, the defendant executed a deed of company arrangement accordingly, with Mr Lombe and Mr Greig as deed administrators;

(d) pursuant to s.444D(1), the deed of company arrangement bound all creditors of the defendant in respect of claims arising on or before 8 March 2004;

(e) the plaintiff is bound by the deed of company arrangement in respect of its claim for rent; and

(f) the deed of company arrangement accordingly acts as an absolute bar and defence to the proceedings.

4 The plaintiff filed a reply on 14 December 2006. By that reply, the plaintiff

(a) did not admit a number of…

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 Kyle House Pty Ltd v ACN 000 016 213 Pty Ltd

Details

AGLC: Kyle House Pty Ltd v ACN 000 016 213 Pty Ltd [2007] NSWSC 224
Case: [2007] NSWSC 224
Decision Date: 15 March 2007

CaseChat Overview and Summary

The dispute between Kyle House Pty Ltd and ACN 000 016 213 Pty Ltd arose in the Federal Circuit Court of Australia. Kyle House, the landlord, sought to recover unpaid rent from ACN 000 016 213, the tenant, who had entered voluntary administration and executed a deed of company arrangement. The landlord sought leave to amend the claim to include a request for an order that would modify the deed of company arrangement to exclude the debt for rent, following the termination of the administration.

The primary legal issues before the court were whether the deed of company arrangement, which had been terminated, could still be varied to exclude the landlord's debt and if the court had the jurisdiction to make such an order post-termination. The court had to consider the effect of the deed's termination on the enforceability of any claims that might have been part of it.

The court held that once a deed of company arrangement is terminated, it no longer exists and therefore cannot be varied. The court found that it did not have jurisdiction to make an order that would vary a deed of company arrangement that no longer existed. The court concluded that the landlord's claim was statute-barred due to the deed of company arrangement's termination, and as a result, the landlord's application to amend the claim was dismissed.

Orders