Onebev Pty Ltd v Encore Beverages Pty Ltd - [2016] VSC 284

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S CI 2016 01129

ONEBEV PTY LTD (ACN 158 478 883)	Plaintiff
v
ENCORE BEVERAGES PTY LTD (ACN 004 073 027)	Defendant

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JUDGE:	RANDALL AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	5 May 2016
DATE OF JUDGMENT:	25 May 2016
CASE MAY BE CITED AS:	Onebev Pty Ltd v Encore Beverages Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VSC 284

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CORPORATIONS – Corporations Act 2001 (Cth) – Statutory demand – Application pursuant to s 459G – 21 day period – Supreme Court Registry not open – Rule 3.08 of Ch 1 of the Supreme Court (General Civil Procedure) Rules 2015 – Whether s 36 of the Acts Interpretation Act 1901 (Cth) extended the time prescribed in s 459G of the Corporations Act 2001 (Cth) notwithstanding that the Federal Court Registry was open on ‘Easter Tuesday’.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D McAloon	Evans Ellis Lawyers
For the Defendant	Mr S Rubenstein	McPherson Kelly Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background......................................................................................................................................... 1

Legislation........................................................................................................................................... 2

Summary of the plaintiff’s argument............................................................................................. 4

Summary of the defendant’s arguments........................................................................................ 6

Consideration...................................................................................................................................... 8

Section 36(3)(b).................................................................................................................................... 9

HIS HONOUR:

Introduction

This is an application pursuant to s 459G of the Corporations Act 2001 (Cth) to set aside a statutory demand. The statutory demand was served on 10 March 2016. The 21 day period set out in s 459G expired on Tuesday 29 March 2016. That was Easter Tuesday and the Supreme Court Registry was ‘effectively’ closed consistent with rule 3.08 of Ch 1 of the Supreme Court (General Civil Procedure) Rules 2015.

The sole issue is whether or not s 36 of the Acts Interpretation Act 1901 (Cth) extended the time prescribed in s 459G.

Background

The defendant served a statutory demand upon the plaintiff. The plaintiff’s solicitors acknowledged receipt on 10 March 2016 and subsequently confirmed that the plaintiff had until 4pm on Tuesday 29 March 2016 to file an application to set aside the creditors’ statutory demand. The defendant’s solicitors confirmed by email dated 24 March 2016 that they had instructions to accept service of the application on behalf of the defendant.

On 29 March 2016, the defendant’s solicitors received an email transmission from the plaintiff’s solicitors enclosing an unsealed copy of the originating process and affidavit in support thereof.

29 March 2016 was ‘Easter Tuesday’. The plaintiff’s solicitors had attempted unsuccessfully to file the originating process on that day. When they were unable to do so, the plaintiff’s solicitors notified the defendant’s solicitors of the following:

In accordance with Regulation 3.08 of the Supreme Court (General Civil Procedure) Rules 2015 the Court is closed the Tuesday following Easter. Whilst the documents have been accepted by the Registry, they are unable to be processed and stamped until tomorrow, 30 March 2016.

On 29 March 2016, the Federal Court was open for business as per usual. On that day the Federal Court also accepted documents for filing…

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: [2016] VSC 284
Decision Date: 25 May 2016

CaseChat Overview and Summary

Onebev Pty Ltd brought an application against Encore Beverages Pty Ltd seeking relief in relation to a statutory demand under the Corporations Act 2001 (Cth). The dispute centred on the validity of the statutory demand and the timeframe within which the application could be made. The matter was heard in the Supreme Court of Queensland. The primary issue for the court was whether the statutory demand was validly issued and whether the time for making an application under section 459G of the Corporations Act 2001 (Cth) was extended due to the Supreme Court Registry being closed on Easter Tuesday. The court had to consider whether the relevant provisions of the Acts Interpretation Act 1901 (Cth) applied to extend the time limit notwithstanding the Federal Court Registry being open.

The court examined the relevant provisions of the Corporations Act 2001 (Cth) and the Acts Interpretation Act 1901 (Cth). The court held that the statutory demand was validly issued, and that the 21-day period for making an application under section 459G of the Corporations Act 2001 (Cth) was not extended by the provisions of section 36 of the Acts Interpretation Act 1901 (Cth). The court found that the Supreme Court Registry being closed on Easter Tuesday did not affect the operation of the time limit, as the Federal Court Registry was open. Therefore, the application was deemed to be out of time and was dismissed.

The court further clarified that the provisions of section 36 of the Acts Interpretation Act 1901 (Cth) do not apply to extend the time limit for making an application under section 459G of the Corporations Act 2001 (Cth) when the Federal Court Registry is open, even if the Supreme Court Registry is closed. The court dismissed the application and awarded costs to the respondent.

Orders