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Randall Pty Ltd v Chepan Pty Ltd

Randall Pty Ltd v Chepan Pty Ltd

Case [2009] NSWSC 848 17 August 2009

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CITATION: Randall Pty Ltd v Chepan Pty Ltd [2009] NSWSC 848

HEARING DATE(S): 17/08/09

JUDGMENT DATE :
17 August 2009

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

EX TEMPORE JUDGMENT DATE: 17 August 2009

DECISION: Application for extension of time dismissed with costs.

CATCHWORDS: CORPORATIONS - winding up - statutory demand - application for order setting aside statutory demand dismissed - plaintiff seeks extension of time for compliance on basis of intention to appeal - whether arguable case on appeal shown - absence from demand of warning obviously addressed to recipient company and drawing attention to need to deal with statutory demand - particular demand dealt with by recipient company within time - argument that injustice will be occasioned to all companies if particular defective demand not set aside - no arguable case on appeal - extension of time for compliance refused

LEGISLATION CITED: Corporations Act 2001 (Cth), ss 9, 459F(2)(a)(i), 459G, 459J(1)(a), 459S
Corporations Amendment Regulations 2007 (No 13)

CATEGORY: Principal judgment

CASES CITED: Australian Beverage Distributors Pty Ltd v Cranswick Premium Wines Pty Ltd [2004] NSWSC 877; (2004) 50 ACSR 544
Jem Devlopments Pty Ltd v Hansen Yuncken Pty Ltd [2006] NSWSC 1378; (2006) 60 ACSR 393
Randall Pty Ltd v Chapan Pty Ltd [2009] NSWSC 791
Randall Pty Ltd v Chepan Pty Ltd [2009] NSWSC 783

PARTIES: Randall Pty Limited - Plaintiff
Chepan Pty Limited - First Defendant
Angela Kallinicos - Second Defendant

FILE NUMBER(S): SC 2219/09

COUNSEL: Mr M R Pesman - Plaintiff
Mr G K Burton SC - Defendant

SOLICITORS: Moloney Lawyers - Plaintiff
Konstan Lawyers - Defendants

- 3 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

MONDAY 17 AUGUST 2009

2219/09 RANDALL PTY LIMITED v CHEPAN PTY LIMITED & ANOR

JUDGMENT

1 I am dealing with the plaintiff’s application under s 459F(2)(a)(i) of the Corporations Act 2001 (Cth) for an order extending the time for compliance with a statutory demand served on it by the defendant. A like application was made last Monday and resulted in an extension of time on a temporary basis up to today: Randall Pty Ltd v ChapanPty Ltd [2009] NSWSC 791.

2 The renewed application now before me is advanced on the footing that the plaintiff intends to appeal against the order dismissing its s 459G application in respect of the statutory demand. That order was made by White J on 4 August 2009: Randall Pty Ltd v Chepan Pty Ltd [2009] NSWSC 783.

3 Both parties have addressed the current application on the basis that the approach that the court should take is that indicated in Australian Beverage Distributors Pty Ltd v Cranswick Premium Wines Pty Ltd [2004] NSWSC 877; (2004) 50 ACSR 544 and Jem Devlopments Pty Ltd v Hansen Yuncken Pty Ltd [2006] NSWSC 1378; (2006) 60 ACSR 393.

4 The first matter to consider, therefore, is the prospects of success in the proposed appeal and whether an…

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 Randall Pty Ltd v Chepan Pty Ltd

Details

AGLC: Randall Pty Ltd v Chepan Pty Ltd [2009] NSWSC 848
Case: [2009] NSWSC 848
Decision Date: 17 August 2009

CaseChat Overview and Summary

Randall Pty Ltd sought to wind up Chepan Pty Ltd following a statutory demand. Chepan applied to set the demand aside, and the primary judge dismissed the application. Chepan subsequently applied for an extension of time to comply with the demand on the basis that it intended to appeal the dismissal of the original application. The legal issue before the court was whether Chepan had shown an arguable case on appeal. The court considered that the statutory demand did not contain the necessary warning to draw attention to the need to deal with the demand, and that this was an important element for the recipient company to consider. Despite this, the recipient company had dealt with the demand within the required time. The court held that Chepan had not shown an arguable case on appeal, and therefore refused the application for an extension of time. The court did not consider it just to set aside the particular defective demand as to do so would cause injustice to all companies.

The court also dismissed Chepan's argument that it would be unjust to all companies if the particular defective demand was not set aside. The court held that the absence of the warning did not render the demand invalid, and that Chepan had failed to show that it would suffer any injustice if the demand was not set aside. The court emphasised that the warning was an important element for the recipient company to consider, but its absence did not necessarily mean that the demand was invalid. The court held that Chepan had not shown an arguable case on appeal, and therefore refused the application for an extension of time. The orders of the primary judge were affirmed.

Orders