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Liverpool Cement Renderers (Aust) Pty Ltd v Landmarks Constructions (NSW) Pty Ltd

Liverpool Cement Renderers (Aust) Pty Ltd v Landmarks Constructions (NSW) Pty Ltd

Case [1996] FCA 260 19 April 1996

Jurisdiction

Statutory Interpretation

Abuse of Process

Res Judicata

Unconscionable Conduct

Specific Performance

Corporate Law & Governance

Civil Litigation & Procedure

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CATCHWORDS

CORPORATIONS LAW - application to restrain publication of notice of winding up application required by sub-rule 37(9) under Corporations Rules (Federal Court) - seeking orders that the application to wind-up be dismissed as an abuse of process - s459G(2) of Corporations Law - requirement that application to set aside a statutory demand served on a company may only be made within 21 days of service - whether recent clarification of a doubtful area of the law excuses non-compliance with s459G(2) - David Grant & Co v Westpac Banking Corporation (1995) Case - whether facts proved an abuse of process so as to allow for the grant of injunctive relief - no such improper purpose shown - whether statutory demand defective on other grounds - whether statutory demand is wrongly based, as based on a debt then not payable - whether this matter can be raised at this stage after failure to comply with 459G(2) - whether unsecured borrowing available to be treated as debtor's own money when determining solvency - question of solvency to be determined at hearing of winding up application - application does not come within reserved category of David Grant's Case - advertisement not to be lightly dispended with.

Corporations Law s 459G(2), s 459C(2)(a), s 459S
Corporations Rules (Federal Court) subrule 37(9)

David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 131 ALR 353, applied
Kekatos v Holmark Construction Company Pty Ltd (1995)
13 ACLC 1581, distinguished
Re J & E Holdings Pty Ltd (1995) 13 ACLC 867, applied
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 13 ACLC 261, applied
Cavetina v Synthetic Dyeworks Industries Pty Ltd (1994)
12 ACLC 768, cited
Williams v Spautz (1992) 174 CLR 509, cited
Chippendale Printing Co Pty Ltd v Deputy Commissioner of Taxation (1995) 13 ACLC 229, cited
Taylor v Australian and New Zealand Banking Group Ltd (1988)
6 ACLC 808, applied
Norfolk Plumbing Supplies Pty Ltd v Commonwealth Bank of Australia (1992) 10 ACLC 158, cited
Sandell v Porter (1966) 115 CLR 666, cited
Australian Securities Commission v AS Nominees Ltd (1995)
13 ACLC 1596, cited.

IN THE MATTER OF LANDMARKS CONSTRUCTIONS PTY LIMITED
LIVERPOOL CEMENT RENDERERS PTY LTD v
LANDMARKS CONSTRUCTIONS PTY LIMITED

NO NG 3064 OF 1996

Tamberlin J
Sydney
19 April 1996

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 3064 of 1996
GENERAL DIVISION                 )

IN THE MATTER OF LANDMARKS CONSTRUCTIONS (NSW) PTY LIMITED
AUSTRALIAN COMPANY NUMBER: 003 113 193

BETWEEN:               LIVERPOOL CEMENT RENDERERS
  (AUST.) PTY LIMITED
  ACN 063 202 988
  Applicant

AND:                   LANDMARKS CONSTRUCTIONS
  (NSW) PTY LIMITED
  ACN 003 113 193
  Respondent

CORAM:       TAMBERLIN J
PLACE:       SYDNEY
DATED:       19 APRIL 1996

MINUTE OF ORDERS

THE COURT ORDERS THAT:

The Notice of Motion be dismissed.

The respondent pay the applicant's costs of the Notice of Motion.

NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of 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.

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Details

AGLC: Liverpool Cement Renderers (Aust) Pty Ltd v Landmarks Constructions (NSW) Pty Ltd [1996] FCA 260
Case: [1996] FCA 260
Decision Date: 19 APRIL 1996

CaseChat Overview and Summary

The matter before the court involved a Notice of Motion filed by the respondent, Landmarks Constructions (NSW) Pty Limited, seeking orders that the applicant, Liverpool Cement Renderers (Aust) Pty Limited, be restrained from publishing notice of a winding up application and that the application be dismissed as an abuse of process. The motion was dismissed by Tamberlin J in the Federal Court of Australia. The central legal issue in this case was whether the applicant's winding up application should be dismissed as an abuse of process, given the respondent's failure to comply with the statutory requirements for setting aside a statutory demand. The court held that the respondent's failure to comply with the mandatory time limit set out in s459G(2) of the Corporations Law (Cth) for setting aside a statutory demand meant that the respondent could not challenge the validity of the statutory demand at this stage. Furthermore, the court found that the respondent had not demonstrated any improper purpose or abuse of process in the applicant's winding up application, and the question of solvency should be determined at the hearing of the winding up application. The court also held that the statutory demand was not defective on the grounds raised by the respondent. Finally, the court found that there were no sufficient grounds to dispense with the requirement to advertise the winding up application, as set out in sub-rule 37(9) of the Corporations Rules (Federal Court). The Notice of Motion was dismissed, and the respondent was ordered to pay the applicant's costs.

Orders