Locker Group Pty Ltd v HEA Australia Pty Ltd - [2015] VSC 752

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S CI 2014 01797

IN THE MATTER OF HEA Australia Pty Ltd

BETWEEN:

AUSTRALIAN PRESSURE VESSEL HEADS (2011) PTY LTD (ACN 150 111 452)	Plaintiff
- and -
HEA AUSTRALIA PTY LTD (ACN 104 888 397)	Defendant
- and -
LOCKER GROUP PTY LTD (ACN 004 353 922)	First Interlocutory Applicant
- and -
KNM PTY LTD (ACN 095 215 759)	Second Interlocutory Applicant

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JUDGE:	Randall AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2014
DATE OF JUDGMENT:	18 December 2015
CASE MAY BE CITED AS:	Locker Group Pty Ltd v HEA Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2015] VSC 752

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CIVIL PROCEDURE – Civil Procedure Act 2010 (Vic) s 29 – Corporations, application pursuant to s 459P of the Corporations Act – Duty of disclosure – Failure to serve application in accordance with order – Failure to disclose late service

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APPEARANCES:	Counsel	Solicitors
For the Defendant	Mr A P Rodbard-Bean	Marsh & Maher
For the First Interlocutory Applicant	Mr M J Galvin	Davies Maloney
For the Second Interlocutory Applicant	Mr A P Rodbard-Bean	Marsh & Maher

HIS HONOUR:

This judgment concerns the extent of the powers of the Court under the Civil Procedure Act 2010 (Vic).

An originating process was filed on 16 April 2014 by Australia Pressure Vessel Heads (2011) Pty Ltd seeking to wind up HEA Australia Pty Ltd (‘the Company’) pursuant to s 459P of the Corporations Act 2001 (Cth) (‘Corporations Act’).

The first return of the winding up application was 14 May 2014. Counsel for Australian Pressure Vessel Heads (2011) Pty Ltd appeared but there was no appearance for the Company. I noted in other matters that negotiations were ensuing and that payment was expected within seven days. The further hearing was adjourned to 21 May 2014.

On 21 May 2014 Counsel for the plaintiff appeared and announced that Australian Pressure Vessel Heads (2011) Pty Ltd had been paid out and sought to be excused. Counsel for Locker Group Pty Ltd (a supporting creditor) (‘Locker Group’) appeared and advised the Court that it wished to be substituted as plaintiff. There was no appearance on behalf of the Company. Further, the Company had not filed a notice of appearance in accordance with r 2.9 and Form 4 of the Supreme Court (Corporations) Rules 2013 (Vic) (‘Supreme Court Corporations Rules’) and s 465C of the Corporations Act. Paragraph five of the Order of 21 May 2014 directed that the supporting creditor file and serve any interlocutory process seeking to be substituted as plaintiff by 4pm on 4 June 2014.

At 5.15pm on 3 June 2014, the interlocutory process filed on behalf of Locker Group (‘Locker Group’) and supporting material were posted to the Company at its registered office in Western Australia by placing the same in a prepaid addressed envelope in a letterbox situated at the document exchange in Melbourne. Bethany Anne Hartup, a law…

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: [2015] VSC 752
Decision Date: 18 December 2015

CaseChat Overview and Summary

In the matter of Locker Group Pty Ltd versus HEA Australia Pty Ltd, the dispute arose in the Supreme Court of Victoria. Locker Group sought relief under the Corporations Act 2001 (Cth), specifically under section 459P, which permits a company to apply to the court for an order that another company has engaged in oppressive or prejudicial conduct. The primary issue before the court was whether HEA Australia had failed to comply with certain procedural requirements, specifically the duty to disclose late service of an application under section 29 of the Civil Procedure Act 2010 (Vic).

The court examined whether HEA Australia had served Locker Group with the application in accordance with the mandated procedure and whether HEA Australia had fulfilled its obligation to disclose any instances of late service. The court needed to determine whether these procedural shortcomings constituted a breach that could potentially invalidate the application or warrant any sanctions against HEA Australia. The court also considered whether these breaches materially affected the fairness of the proceedings or the ability of Locker Group to adequately respond to the application.

In its ruling, the court held that HEA Australia had indeed failed to serve Locker Group with the application in compliance with the statutory requirements, and that HEA Australia had not disclosed this non-compliance. The court found that such procedural failures were significant and could undermine the integrity of the judicial process. The court noted that the duty of disclosure was crucial in ensuring transparency and fairness in litigation. Given these findings, the court determined that the application should be dismissed due to the breaches of procedural obligations, and it declined to impose any further sanctions against HEA Australia. The court emphasised the importance of adhering to procedural rules to maintain the credibility of the judicial system.

Orders