Randall Pty Ltd v Chepan Pty Ltd

[2009] NSWSC 791

CITATION:	Randall Pty Ltd v Chepan Pty Ltd [2009] NSWSC 791
HEARING DATE(S):	10/08/09
JUDGMENT DATE :	10 August 2009
JURISDICTION:	Equity Division Corporations List
JUDGMENT OF:	Barrett J
EX TEMPORE JUDGMENT DATE:	10 August 2009
DECISION:	Extension to 17 August 2009 granted.
CATCHWORDS:	CORPORATIONS - winding up - statutory demand - application for order setting aside statutory demand dismissed - company seeks short extension of period for compliance to consider possibility of appeal
LEGISLATION CITED:	Corporations Act 2001 (Cth), ss 459F, 459G
CATEGORY:	Principal judgment
CASES CITED:	115 Constitution Road Pty Ltd v Downey [2008] NSWSC 997; (2008) 220 FLR 216 Australian Beverage Distributors Pty Ltd v Cranswick Premium Wines Pty Ltd [2004] NSWSC 877; (2004) 50 ACSR 544 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

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

BARRETT J

MONDAY 10 AUGUST 2009

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

JUDGMENT

1 I have before me an application in concluded proceedings under s 459G of the Corporations Act 2001 (Cth).

2 In those proceedings, the plaintiff sought an order setting aside a statutory demand served on it by the defendant. That claim was determined by White J on 4 August 2009. His Honour dismissed the s 459G application, see Randall Pty Ltd v Chepan Pty Ltd [2009] NSWSC 783. Judgment was given orally on 4 August 2009 and the transcript of the judgment in final form became available to the parties shortly before 10 o'clock this morning.

3 The application now before me is the plaintiff's application for an extension of time under s 459F, that is to say, an extension of the period for compliance with the statutory demand. In the absence of any extension, the period for compliance will end seven days after the final determination or disposition of the s 459G application by White J on 4 August 2009.

4 The plaintiff seeks an extension at this stage for seven days from today, that is to say, until Monday 17 August 2009. It does so, in essence, on the basis that it wishes to have a proper opportunity to consider whether to institute an appeal against the decision of White J.

5 Mr Pesman says on behalf of the plaintiff that by next Monday the plaintiff will be in a position where it either makes further application for extension based on fully articulated grounds in the way suggested by Australian Beverage Distributors Pty Ltd v Cranswick Premium Wines Pty Ltd [2004] NSWSC 877; (2004) 50 ACSR 544 (and other cases that have proceeded on a similar basis) or does not renew its extension application so that the time for compliance simply expires.

6 The application is opposed by the defendant. Several matters arise.

7 First, it was suggested by Mr Burton SC on behalf of the defendant that the absence of White J's written reasons should not have been a barrier to the formulation of grounds of appeal - if there were to be an appeal - at least to a point sufficient to articulate the basic propositions. This submission is made on the basis that solicitors in court when judgment was delivered orally took notes, which notes should have provided enough information to make the decision to which I have referred.

8 While there is force in this, the reality is that the full impact of the oral judgment perhaps could not be appreciated until the written version was obtained and digested. That is an indication in favour of granting the short extension the plaintiff seeks.

9 It is then said that, whatever may be the full import of the judgment, it is clear that the two points with which it dealt were not free from difficulty. One (a novel point, I think) went to the absence from the statutory demand of the form of warning to the recipient company that has formed part of the prescribed form of statutory demand only since 1 January 2009. The other went to the point whether when executors make a statutory demand it is necessary for the demand to be signed by all of them (compare 115 Constitution Road Pty Ltd v Downey [2008] NSWSC 997; (2008) 220 FLR 216).

10 There is then the question of prejudice to the defendant if the extension of seven days is granted. I cannot think that the prejudice is great. I have been taken to the history of litigation between the parties which has extended over a very long period (the statutory demand was based on a judgment debt). That of itself does not indicate that particular prejudice will be caused by the grant of the extension sought. The situation really is one in which somewhat less than a week’s extra time will be available to the plaintiff.

11 In all the circumstances, the extension should be granted but there is then the question raised by the defendant whether the extension should be on terms. The terms suggested are that the plaintiff be required to pay into court or give security for costs of the appeal in the sum of $20,000 and for the amount specified in the statutory demand.

12 Given that a very short extension is sought and given also the purpose of the extension as I have already outlined it, it would be premature to consider any such question of security. That may well become an issue if and when the plaintiff renews its extension application on or before 17 August 2009.

13 I make orders as follows:

1. Order pursuant to s 459F of the Corporations Act 2001 that the time for compliance with the creditors statutory demand for payment of debt dated 17 March 2009 be extended up to and including Monday, 17 August 2009.
2. The proceedings are to be placed in the Corporations Judge’s list on 17 August 2009.
3. Costs of the application dealt with today are reserved.

**********