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Metledge v Owners - Strata Plan 87778

Metledge v Owners - Strata Plan 87778

Case [2020] NSWSC 891 7 July 2020

Interlocutory Orders

Stay of Proceedings

Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Metledge v Owners – Strata Plan 87778 & Anor [2020] NSWSC 891
Hearing dates: 6 July 2020
Date of orders: 7 July 2020
Decision date: 07 July 2020
Jurisdiction: Equity - Corporations List
Before: White J
Decision:
See paras [106] and [110].

Catchwords:
CORPORATIONS – Winding-up – interlocutory process to set aside winding-up order pursuant to r 36.15 or 36.16(2)(b) Uniform Civil Procedure Rules 2005 – where orders made in the absence of the Company – where originating process and statutory demand deliberately not brought to the attention of the applicant’s solicitor – where neither the creditor nor the liquidator disputed the solvency of the Company
COSTS — Party/Party – where orders set aside pursuant to r 36.16(2)(b) and originating process dismissed – whether applicant or respondent ought to bear the costs of the interlocutory process and the originating process – whether applicant seeking an indulgence in light of finding that the originating process and statutory demand were deliberately not brought to the attention of the applicant’s solicitor –where that decision the principal cause of the incurring of costs in the proceedings

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Corporations Act 2001 (Cth), ss 198G, 482, Sch 2
Strata Schemes Management Act 2015 (NSW), ss 85, 90, 104
Supreme Court Act 1970 (NSW), s 76
Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16, 42

Cases Cited:
Double Bay Newspapers v The Fitness Lounge [2006] NSWSC 226; (2006) 57 ACSR 131
George Ward Steel Pty Ltd v Kizkot Pty Limited (1989) 15 ACLR 464
J & M McNamee Holdings Pty Ltd v Mungerie Vale Pty Ltd t/as Greenwood, Group Realtors [2019] NSWCA 283
Labraga v Pomfret [2005] NSWSC 654
Lane Cove Council v Geebung Polo Club Pty Limited (Green as liquidator) and Ors (No 2) [2002] NSWSC 118; (2002) 41 ACSR 15
Owners Strata Plan 50411 v Cameron North Sydney Investments Pty Limited [2003] NSWCA 5
Re Day & Night Online Transport Pty Ltd (in liq) [2018] NSWSC 796
Re Future Life Enterprises Pty Limited (1994) 33 NSWLR 559
Re Rosecell Pty Ltd [2016] NSWSC 1914
Registrar of Aboriginal Corporations v Murnkurni Women's Aboriginal Corporation (in liq) (1995) 58 FCR 125
Symes v Proprietors Strata Plan 31731 [2003] NSWCA 7
Walker v Midlink Nominees Pty Limited [2000] WASC 112; 34 ACSR 210
Buckland Products Pty Limited v Deputy Commissioner of Taxation Commonwealth [2003] VSCA 85
Brolrik Pty Ltd v Sambah Holdings Pty Ltd [2001] NSWSC 1171; 40 ACSR 361

Texts Cited:
G E Dal Pont, Law of Costs 3rd ed LexisNexis Butterworths, 2013

Category: Principal judgment
Parties: Tony Joseph Metledge (Applicant)
Owners – Strata Plan 87778 (First Respondent)
Jason Lloyd Porter and Shumit Banerjee (as liquidators of Orico Properties Pty Ltd) (Second Respondent)
Orico Properties Pty Ltd (in liquidation) (Third Respondent)
Representation:
Counsel:
Self-represented (Applicant)
J Cook (First Respondent)
H Somerville (Second Respondent)
Solicitors:
n/a
Madison Marcus Law Firm (First Respondent)
MDW Law (Second Respondent)

File…

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 Metledge v Owners - Strata Plan 87778

Details

AGLC: Metledge v Owners - Strata Plan 87778 [2020] NSWSC 891
Case: [2020] NSWSC 891
Decision Date: 07 July 2020

CaseChat Overview and Summary

The case of Metledge v Owners - Strata Plan 87778 involved a dispute concerning the winding-up of a company, Owners - Strata Plan 87778. Metledge, the applicant, sought to set aside a winding-up order that had been made in the absence of the company, arguing that the statutory demand and originating process were deliberately not brought to the attention of the company’s solicitor. The dispute was heard in the Supreme Court of New South Wales, where the applicant sought relief under rules 36.15 and 36.16(2)(b) of the Uniform Civil Procedure Rules 2005.

The legal issues before the court centred on the circumstances in which a winding-up order made in the absence of a company could be set aside, and the appropriate allocation of costs between the parties in such interlocutory proceedings. Specifically, the court had to consider whether the applicant's solicitor's failure to bring the statutory demand and originating process to the company’s attention constituted a sufficient ground for setting aside the winding-up order. Additionally, the court needed to determine the appropriate party to bear the costs of the interlocutory process and the originating process, especially in light of the finding that the statutory demand and originating process were deliberately not brought to the attention of the applicant’s solicitor.

In reaching its decision, the court found that the applicant’s solicitor's failure to bring the statutory demand and originating process to the attention of the company was a significant oversight, leading to the making of the winding-up order in the company’s absence. The court held that the applicant was not entitled to relief under rule 36.15 as the applicant had not demonstrated any reasonable excuse for the delay in bringing the statutory demand and originating process to the attention of the company’s solicitor. However, the court granted the application under rule 36.16(2)(b) due to the applicant’s failure to bring the statutory demand and originating process to the attention of the company’s solicitor. The court also considered the matter of costs, ultimately determining that the applicant should bear the costs of the interlocutory process and the originating process, given that the applicant's solicitor's failure to act was the principal cause of the incurring of those costs.

In conclusion, the court set aside the winding-up order, dismissed the originating process, and ordered that the applicant bear the costs of the interlocutory process and the originating process.

Orders