Merrill Lynch Equities (Australia) Ltd v Triangle Packing Case Pty Ltd - [1999] FCA 810

FEDERAL COURT OF AUSTRALIA
Merrill Lynch Equities (Australia) Ltd v Triangle Packing Case Pty Ltd [1999] FCA 810
CORPORATIONS – winding up – review of decision of Judicial Registrar to dismiss application for winding up – where on the review, the applicant seeks an order for winding up outside the period stipulated by s 459R(1) of the Corporations Law – effect of s 459R Corporations Law is that any review of decision of Judicial Registrar must be completed within time limit set by that section.
Federal Court of Australia Act 1976 s 18AC
Corporations Law s 459R
Federal Court Rules O 74 r 4
Cross v Deniliquin Council (1995) 129 ALR 418 referred to
Re Australnet Ltd (1995) 13 ACLC 96 discussed
Western Suburbs Electrical Supplies Pty Limited v Russell Electrical Services Pty Ltd (1994) 12 ACLC 719 discussed
MERRILL LYNCH EQUITIES (AUSTRALIA) LIMITED (ACN 006 276 795) V TRIANGLE PACKING CASE PTY LTD (ACN 000 036 671)
VG 3207 OF 1998
SPENDER J
16 JUNE 1999
BRISBANE (heard in Melbourne)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 3207 OF 1998

BETWEEN:

MERRILL LYNCH EQUITIES (AUSTRALIA) LIMITED
(ACN 006 276 795)
Applicant

AND:

TRIANGLE PACKING CASE PTY LTD
(ACN 000 036 671)
Respondent

JUDGE:

SPENDER J

DATE OF ORDER:

16 JUNE 1999

WHERE MADE:

BRISBANE (heard in Melbourne)

THE COURT DECLARES THAT:
After 22 December 1998, the Court had no power to review the decision of Judicial Registrar Ryan on 28 October 1998 dismissing the application of Merrill Lynch Equities (Australia) Limited that Triangle Packing Case Pty Ltd be wound up.
THE COURT ORDERS
The applicant pay the respondent’s costs, to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 3207 OF 1998

BETWEEN:

MERRILL LYNCH EQUITIES (AUSTRALIA) LIMITED
(ACN 006 276 795)
Applicant

AND:

TRIANGLE PACKING CASE PTY LTD
(ACN 000 036 671)
Respondent

JUDGE:

SPENDER J

DATE:

16 JUNE 1999

PLACE:

BRISBANE (heard in Melbourne)

REASONS FOR JUDGMENT

This is the hearing of a notice of motion dated 18 November 1998 filed on behalf of Merrill Lynch Equities (Australia) Limited (‘Equities’) seeking a review of a decision of Judicial Registrar Ryan made on 28 October 1998 that the application by Equities to wind up the respondent, Triangle Packing Case Pty Ltd (‘Triangle’) be dismissed and that Equities pay Triangle’s costs of and incidental to the application.
The jurisdiction to review a decision of a Judicial Registrar is contained in s 18AC of the Federal Court of Australia Act 1976 and O 74 r 4 of the Federal Court Rules. As explained by Moore J in Cross v Deniliquin Council (1995) 129 ALR 418, the review by the court of a decision of a Judicial Registrar is a hearing de novo and the parties are not bound to or limited by the evidence before the judicial registrar.
Equities issued a statutory demand…

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: [1999] FCA 810
Decision Date: 16 JUNE 1999

CaseChat Overview and Summary

Merrill Lynch Equities (Australia) Limited sought to wind up Triangle Packing Case Pty Ltd following the issuance of a statutory demand. The application was dismissed by a Judicial Registrar, and Merrill Lynch sought a review of this decision. The Federal Court of Australia examined whether the court could review the decision of the Judicial Registrar to dismiss the winding-up application and whether it could make a winding-up order outside the time limit set by s 459R(1) of the Corporations Law. The Court found that the statutory demand was not served within the stipulated time period and that the review of the Judicial Registrar's decision was made outside the six months period required by s 459R(1) of the Corporations Law. As a result, the application for winding up was dismissed with costs. The Court held that any review of the decision of the Judicial Registrar must be completed within the time limit set by s 459R(1) of the Corporations Law, and any order for winding up must be made within that period. The Court also held that s 1322(4)(d) of the Corporations Law could not apply to an application under s 459R(2) because it was directed to the extension or abridgment of a period stipulated in the Corporations Law.

Orders