Profounder Electrical Pty Ltd v Shutter Guard Group Pty Ltd - [2025] WASC 67

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PROFOUNDER ELECTRICAL PTY LTD -v- SHUTTER GUARD GROUP PTY LTD [2025] WASC 67
CORAM:   LUNDBERG J
HEARD:   ON THE PAPERS
DELIVERED          :   6 MARCH 2025
FILE NO/S:   COR 101 of 2024
BETWEEN:   PROFOUNDER ELECTRICAL PTY LTD
Plaintiff

AND

SHUTTER GUARD GROUP PTY LTD
Defendant

Catchwords:

Costs - Application by plaintiff to wind up the defendant company based on failure to comply with a statutory demand - Application ultimately withdrawn with the leave of the Court following several steps in the proceedings - Whether plaintiff should pay the costs of the application - No explanation on affidavit for the withdrawal of the application - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 459P, s 459S
Rules of the Supreme Court 1971 (WA), O 66 r 1
Supreme Court Act 1935 (WA), s 37

Result:

The plaintiff is to pay the defendant's costs of the proceeding, including the costs of the defendant's interlocutory process dated 30 August 2024, to be assessed on a party/party basis, if not agreed, such amount to be reduced by the sum of $506 being the amount of the costs order made in favour of the plaintiff on 20 August 2024.

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	CX Law
Defendant	:	Solomon Brothers

Case(s) referred to in decision(s):

Auto Control Systems Pty Ltd v WA Glass Pty Ltd [2024] WASC 160
Frigger v Lean [2012] WASCA 66
O’Neill v Mann [2000] FCA 1680
Re Kirman and Brauer as joint and several administrators of Tiger Resources Ltd (Subject to deed of company arrangement) [2021] WASC 273
Rhodium Australia Pty Ltd v Deputy Commissioner of Taxation [2012] FCAFC 17
Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388

LUNDBERG J:

A. Introduction

These reasons concern the costs orders which should be made following the withdrawal by the plaintiff of its application to wind up the defendant in insolvency.
The application itself was brought by originating process dated 27 June 2024 (the Application), filed pursuant to s 459P of the Corporations Act 2001 (Cth) (the Corporations Act). The Application was based on the defendant's failure to comply with the statutory demand which had been served on the defendant on 4 April 2024 (the Statutory Demand).
The Statutory Demand sought payment of the amount of $93,209.50. The Statutory Demand was not based upon a judgment debt. Rather, it was supported by an affidavit which asserted the existence of a debt owed to the plaintiff, based upon twenty individual invoices issued by the plaintiff, dated between 23 October 2023 and 23 February 2024.
The schedule to the Statutory Demand described the debt in rather general terms, being for the 'provision of goods and services'. The supporting affidavit descended no further into the detail, describing the debt as relating to 'work undertaken and goods supplied'.

B. Procedural history

By way of a brief…

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.

Keep reading for free

Create a free CaseChat account to read Profounder Electrical Pty Ltd v Shutter Guard Group Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] WASC 67
Decision Date: 6 MARCH 2025

CaseChat Overview and Summary

Profounder Electrical Pty Ltd sought to wind up Shutter Guard Group Pty Ltd on the basis that the latter had failed to comply with a statutory demand. The case was heard in the Federal Circuit and Family Court of Australia. The central issue before the Court was whether Profounder should be ordered to pay the costs of the application after it was withdrawn. The Court noted that Profounder had applied to wind up Shutter Guard, but subsequently withdrew the application with leave of the Court. The matter proceeded to a hearing on the issue of costs. The Court was required to determine whether Profounder should be liable for the costs of its application, particularly given that it had not provided an explanation for the withdrawal.

The Court considered the circumstances under which the application was withdrawn and the lack of explanation provided by Profounder. The Court emphasised that the withdrawal of an application for winding up based on a failure to comply with a statutory demand is a significant step and typically requires a justification. In this instance, Profounder had not provided any explanation for the withdrawal, and the Court found that this was a critical factor in determining the issue of costs. The Court held that the absence of an explanation for the withdrawal of the application meant that Profounder should be liable for the costs of the application. The Court concluded that the withdrawal was on its own facts and did not provide sufficient grounds to absolve Profounder of the costs. The Court ultimately ordered that Profounder bear the costs of the application.

Orders