Lemmen v Porcu

Case [2013] FCA 1056

FEDERAL COURT OF AUSTRALIA

Lemmen v Porcu [2013] FCA 1056

Citation: Lemmen v Porcu [2013] FCA 1056
Parties: PETER HEINZ LEMMEN v MARCELLO DANIEL PORCU
File number(s): NSD 1556 of 2011
Judge(s): DAVIES J
Date of judgment: 17 October 2013
Catchwords: CORPORATIONS — Winding up of company in insolvency — Application by director for review of Registrar’s order to wind up company – Leave to bring application out of time required – Approval of the Court required — No reasonable explanation for delay — No arguable case — Prejudice — Application dismissed with costs.
Legislation: Federal Court of Australia Act 1976 (Cth) s 35A
Corporations Act 2001 (Cth), ss s 459C, 459S, 471A
Federal Court Rules 2011 (Cth), r 3.11
Cases cited:

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Ace Contractors & Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728

Lane Cove Council v Geebung Polo Club Pty Ltd (No 2) (2002) 167 FCR 175

Binetter v Commissioner of Taxation (2011) 198 FCR 49

HVAC Construction (Qld) Pty Ltd v Energy Equipment Engineering Pty Ltd [2002] FCA 1638

Rodgers v CJS Panels Pty Ltd [2001] VSC 470
Date of hearing: 16 October 2013
Date of last submissions: 16 October 2013
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 14
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondent: The respondent appeared in person
Counsel for the Liquidator: E Moon

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

 NSD 1556 of 2011
BETWEEN:

PETER HEINZ LEMMEN
Applicant
AND:

MARCELLO DANIEL PORCU
First Respondent

RICHARD RHORT IN HIS CAPACITY AS LIQUIDATOR OF AMERICAN GEMSTONE PTY LTD (IN LIQUIDATION)
Second Respondent

JUDGE:

DAVIES J

DATE OF ORDER:

17 OCTOBER 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application filed 22 January 2013 is dismissed with costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

NSD 1556 of 2011
BETWEEN:

PETER HEINZ LEMMEN
Applicant
AND:

MARCELLO DANIEL PORCU
First Respondent

RICHARD RHORT IN HIS CAPACITY AS LIQUIDATOR OF AMERICAN GEMSTONE PTY LTD (IN LIQUIDATION)
Second Respondent

JUDGE:

DAVIES J

DATE:

17 OCTOBER 2013

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. On 7 December 2011, Registrar Hedge made an order winding up American Gemstone Pty Ltd (“the company”) in insolvency on the application of the respondent (“Mr Porcu”). The application relied on the failure of the company to comply with a statutory demand and the statutory presumption of insolvency under s 459C of the Corporations Act 2001 (Cth) (“the Corporations Act”). The applicant (“Mr Lemmen”), who was a director of the company at the time it was ordered to be wound up, has applied to the Court for an extension of time in which to apply for a review of the Registrar’s order and, if granted, for the review of that order.…

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AGLC
Lemmen v Porcu [2013] FCA 1056
Case
[2013] FCA 1056
Decision Date

CaseChat Overview and Summary

Lemmen v Porcu involved a legal dispute where the applicant, Lemmen, sought to appeal a Registrar's order to wind up a company due to insolvency. The case was heard in the Federal Court of Australia. Lemmen, who was a director of the company, applied for leave to bring his application out of time, as he had missed the statutory deadline for such applications.

The central legal issue before the Court was whether Lemmen's application for leave to bring his application out of time should be approved under section 471A of the Corporations Act. The Court had to assess whether Lemmen had provided a reasonable explanation for the delay and whether there was an arguable case for the application. Additionally, the Court had to consider whether Lemmen's application would cause prejudice to any other party.

The Court found that Lemmen had not provided a reasonable explanation for the delay in bringing his application, nor had he demonstrated an arguable case that would warrant the approval of his out-of-time application. The Court concluded that Lemmen had not met the criteria necessary for the grant of approval under section 471A of the Corporations Act. Consequently, the application was dismissed with costs.

The Court ordered that the application filed on 22 January 2013 be dismissed with costs, as per Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application filed 22 January 2013 is dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Whilst the matters relevant to the exercise of the Court’s discretion will depend on the nature of the action that an applicant for approval wishes to pursue, ultimately in this case the matters that will bear upon whether the Court should give its approval are the same matters that the Court will consider in relation to whether to allow an extension of time to Mr Lemmen in which to apply for review of the Registrar’s winding up order: HVAC Construction (Qld) Pty Ltd v Energy Equipment Engineering Pty Ltd [2002] FCA 1638; Binetter v Commissioner of Taxation (2011) 198 FCR 49; Rodgers v CJS Panels Pty Ltd [2001] VSC 470. It follows that Mr Lemmen has not justified the grant of approval under s 471A of the Corporations Act for the same reasons that he has not justified the grant of an extension of time.CONCLUSION The application is dismissed with costs.

Ratio Decidendi

Legal Principle Established

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