R & B Property Developments Pty Ltd, Re; Shaw Contracting Pty Ltd v R & B Property Developments Pty Ltd
[1999] TASSC 143
•16 December 1999
[1999] TASSC 143
CITATION: R & B Property Developments Pty Ltd, Re [1999] TASSC 143
PARTIES: R & B PROPERTY DEVELOPMENTS PTY LTD, Re
SHAW CONTRACTING PTY LTD
v
R & B PROPERTY DEVELOPMENTS PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M 40/1999
DELIVERED ON: 16 December 1999
DELIVERED AT: Launceston
HEARING DATE/S: 10 December 1999
JUDGMENT OF: Crawford J
CATCHWORDS:
Corporations - Winding-up - Winding-up by Court - Winding-up application - Other matters - Failure by applicant to comply strictly with miscellaneous and minor procedural requirements - No injustice shown - Dispensation with requirements.
Corporations Law, ss467(3)(a) and 467A.
Aust Dig Corporations [230]
REPRESENTATION:
Counsel:
Applicant: S B McElwaine
Respondent: B H Crawford
Solicitors:
Applicant: S B McElwaine
Respondent: Crawford & Crawford
Judgment ID Number: [1999] TASSC 143
Number of paragraphs: 16
Serial No 143/1999
File No M 40/1999
IN THE MATTER of R & B PROPERTY DEVELOPMENTS PTY LTD
(ACN 074 803 428)
SHAW CONTRACTING PTY LTD (ACN 009 501 197) v R & B PROPERTY DEVELOPMENTS PTY LTD (ACN 074 803 428)
REASONS FOR JUDGMENT CRAWFORD J 16 December 1999
The applicant applied under the Corporations Law, s459P, that the respondent be wound up in insolvency, based on the respondent's failure to comply with a statutory demand which concerned a debt of $39,401.45 due from the respondent to the applicant. The statutory demand was served by the posting of it on 1 August 1999 to the respondent's registered office, which at that time was at 52 Greenwich Court, Robina in Queensland.
The respondent has not sought to establish that it is not indebted to the applicant or that it is not insolvent. By virtue of its failure to comply with the statutory demand the Court must presume that the company is insolvent. Corporations Law, s459C(2). However, the respondent filed an appearance to the application raising 17 grounds of opposition, all of which raised alleged failures of the applicant to comply with the Corporations Law and the Rules of the Supreme Court, Pt X. By the outset of the hearing on 10 December some of those grounds had been abandoned and by the conclusion of the hearing many others had also been abandoned. I will deal only with the grounds which remained. I note that counsel for the respondent did not argue that the application for winding-up should be dismissed. It was merely submitted that the application should be adjourned to enable the applicant to comply with the Law and the rules. However, apart from seeking to delay the making of a winding-up order there is no apparent reason why the respondent would want an adjournment. The proceedings have twice before been adjourned, on 15 and 29 November.
By the fifth ground of opposition reliance is placed on r48(2), which requires that where an application is based on a failure to comply with a statutory demand, the applicant must file an affidavit, which may be in accordance with Form 58, made not earlier than seven days before the application is filed and setting out "the prescribed information".
An affidavit of the applicant's solicitor, Shaun McElwaine, was sworn and filed on 21 September 1999, which was the same day as the filing of the application. It was not in accordance with the prescribed Form 58, but subr48(2) did not require that. The sub-rule merely permitted it. However, it was submitted for the respondent that Mr McElwaine's affidavit did not set out "the prescribed information". What that information must be is to be found in the interpretation provisions of r1. Counsel for the respondent submitted that having regard to those provisions, the affidavit was deficient because it failed to state ¾
Athe date of the respondent's incorporation;
Bthe statute under which it was incorporated;
Cthe general nature of any business carried on or previously carried on by the company at any relevant time;
Dthe address of the registered office of the company is determined by a search of records maintained by the Australian Securities Commission made not earlier than seven days before the application was filed;
Ethe capacity in which the applicant makes the application.
Annexed to Mr McElwaine's affidavit were copies of the results of searches of the records of the Commission made on 21 June 1999 and 21 September 1999. They show that the company was incorporated in Victoria on 10 July 1996. The statute under which the company was incorporated does not appear but, taking judicial notice of the law, it could only have been under the Corporations Law. The general nature of any business carried on by the company was not stated in the affidavit. The address of the registered office as at 21 September 1999 appeared in the search result of that date (counsel for the respondent conceded that). An affidavit of Alwyn Shaw sworn on 16 September 1999 and filed on 21 September 1999, showed that the applicant had made the application as a creditor of the respondent.
There was therefore a failure to comply with r48(2) in that there was no affidavit complying with the sub-rule which identified the statute under which the respondent was incorporated and which stated the general nature of any business carried on or previously carried on by the respondent at any time.
The Corporations Law, s467A, provides that an application such as the present one, involving as it does an application under the law, Pt 5.4, must not be dismissed merely because of any defect or irregularity in connection with the application, unless the Court is satisfied that substantial injustice has been caused that cannot otherwise be remedied. There is no evidence of injustice in this case. The respondent did not attempt to show it. In conformity with the section the Court therefore must not dismiss the application. Section 467(3)(b), authorises the Court to dispense with any steps required by the Law or the rules. It is clearly appropriate to dispense with the requirements of r48(2) with which the applicant has not complied. The failures of the applicant to comply were minor, bordering on the trivial, and the Court ought not allow purely technical disputes to prolong the determination of a winding-up application. See Dolvelle Pty Ltd v Australian Macfarms Pty Ltd (1998) 28 ACSR 175.
By the eleventh ground of opposition the respondent complains of a failure by the applicant to comply with r47(5) in that there was not served on the respondent at the time of service of the application, the nomination of a liquidator. Rule 47(5), did not require that and there is no basis to the ground.
By the fourteenth ground of opposition, it is asserted that the nomination of the liquidator was sent to an address other than the registered office of the respondent (thereby not complying with r47(5)(c). The applicant filed an affidavit of Tania Kerrison sworn on 12 November 1999 in which she attested that on 8 November 1999 she posted the document to the respondent at 52 Greenwich Court, Robina, Queensland, 4226. At that time it was not realised that the registered office had moved from that address on 14 October 1999 to 264 Charles Street, Launceston, Tasmania, 7250. An affidavit of Tina Codee sworn on 6 December 1999 established that the nomination of the liquidator was posted by her to that address on 6 December 1999. Counsel for the respondent pointed to r18(2) which provides that service by post to a company at its registered office "prima facie is taken to be served on the seventh day after posting", which means that service would be deemed to be effective on 13 December 1999, that is to say after the date of the hearing of the application. Counsel submitted that the proper course was to adjourn the hearing of the application until a reasonable time after the deemed date of service. Such arguments are technical in the extreme. In any event I reserved my judgment and adjourned the hearing until after that date, to 16 December. However, I do not think that r18(2) applies because it is ultra vires the Corporations Law, s109Y, which provides that "unless the contrary is proved, the service is taken to have been effected at the time at which" the document "would have been delivered in the ordinary course of post".
The purpose of the requirement that the respondent have served on it the nomination of the liquidator must be to enable the respondent to object to the nomination. There was no suggestion made on behalf of the respondent that it wishes to object to the nomination which has been made in this case or that it needs further time to consider whether to object. There is no apparent need to further adjourn the application for winding-up and indeed injustice may result, for there is a risk that the respondent, which is now deemed to be insolvent, may be trading.
I therefore propose to exercise the power given by s467(3)(b) and dispense with the requirements of r47(5) that no later than 14 days after the date of filing the application, the applicant was to serve on the respondent any nomination of a liquidator. I should add that it was in any event impossible for the applicant to comply with that sub-rule because, notwithstanding that the application for nomination was made on 19 September 1999, when the application for winding-up was filed, the District Registrar of the Court failed to make the nomination until 19 October 1999.
By the fifteenth ground of opposition the respondent relies on a failure by the applicant to comply with the Corporations Law, s470(1), which required the applicant to lodge, not later than 10.30am on the next business day after the filing of the application, notice of the filing of the application and of the date on which the application was filed. The application was filed on 21 September and to comply with s470(1) the applicant needed to lodge the required notice with the Commission by 10.30am on 22 September. It was not lodged by that time. It was lodged on 23 September, one day late. The respondent has made no attempt to establish that injustice has been suffered as a result and I cannot conceive of any. Once again I propose to apply the provisions of s467A and s467(3)(b) and dispense with the requirement of s470(1) that the applicant lodge the notice within the time limited by that sub-section.
The sixteenth ground of opposition, and the last of those not abandoned by the respondent, concerns the form of a notice which was published in the Australian newspaper on 27 October 1999. Rule 48(9) required notice of the application "in Form 23" to "be published in the manner prescribed by r107". The prescribed Form 23 contains the following directions. Immediately after the heading of the form there appears in brackets the words "no heading or title". In this case the notice published in the Australian newspaper contained the heading and title of the application to the Court. The prescribed Form 23 next provided for the following: "Notice of application relating to: (Name of company in capitals)". In this case the notice published in the Australian newspaper showed the name of the company in bold print but not in capitals.
Counsel for the respondent submitted that the notice in the Australian newspaper was therefore misleading and that the proper course is for the Court to require a fresh advertisement to be published and the adjournment of the further hearing of the application until that has occurred. Counsel for the respondent submitted that the defects concerning the notice are serious. The prescribed form is designed, so he submitted, to make the name of the company it is proposed to have wound up appear in eye-catching detail. By failing to state the name of the company in capital letters and by immediately preceding it with the heading and title of the application, counsel submitted that the notice was jumbled and confused and the name of the respondent was unlikely to catch the eye of a reader.
The advertisement stated the respondent's name four times, in bold print twice. If the prescribed form had been followed its name would have appeared three times, once in capitals and twice in lower case. In my opinion, any reader wishing to have regard to notices of winding-up applications published in the Australian newspaper would have no difficulty in ascertaining that an application had been made with regard to the respondent. No doubt the advertisement could have been clearer but readers would not have had substantial difficulty with what was published. The Acts Interpretation Act 1901 (Commonwealth), s25C, provides that "where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient". In my opinion the notice published in the Australian newspaper substantially complied. The respects in which it did not comply were not significant, in all the circumstances, significant and I dispense with compliance with the strict requirements of r48(9).
The conclusion to which I have come, and I have no doubt that it is the correct one, is that the procedural defects which occurred are of little consequence and ought not delay the making of the winding-up order in a case where the insolvency of the respondent is presumed. The following orders will be made:
1That R & B Property Developments Pty Ltd (ACN 074 803 428) be wound up by this Court under the provisions of the Corporations Law;
2That John W Woods of 30 Davey Street, Hobart in Tasmania, an official liquidator be appointed liquidator of the company;
3That the applicant's costs be taxed and reimbursed out of the property of the company in accordance with the Corporations Law, s466.
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