Legal Research
Cases
Re APCH Ltd (in liquidation) (No 3)

Re APCH Ltd (in liquidation) (No 3)

Case [2014] VSC 456 17 September 2014

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

CORPORATIONS LIST

S CI 1341 of 2013

IN THE MATTER OF:
AUSTRALIAN PROPERTY CUSTODIAN HOLDINGS LTD
(ACN 095 474 436) (liquidators appointed)
(receivers and managers appointed) (controllers appointed)

BETWEEN :
AUSTRALIAN PROPERTY CUSTODIAN HOLDINGS LTD (ACN 095 474 436) (liquidators appointed) (receivers and managers appointed) (controllers appointed)
Plaintiff
AND
WILLIAM LIONEL LEWSKI and others	Defendants
S CI 1136 of 2014
IN THE MATTER OF AUSTRALIAN PROPERTY CUSTODIAN HOLDINGS LTD (ACN 095 474 436) (liquidators appointed) (receivers and managers appointed) (controllers appointed)
STIRLING LINDLEY HORNE and PETER VRSECKY (in their capacities as joint and several liquidators of AUSTRALIAN PROPERTY CUSTODIAN HOLDINGS LTD (ACN 095 474 436) (liquidators appointed) (receivers and managers appointed) (controllers appointed))
Plaintiffs

---

JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 and 27 August 2014
DATE OF JUDGMENT:	17 September 2014
CASE MAY BE CITED AS:	Re APCH Ltd (in liquidation) (No 3)
MEDIUM NEUTRAL CITATION:	[2014] VSC 456

---

PRACTICE AND PROCEDURE – Application by defendants to set aside orders extending the period for service of the writ and to set aside service of the writ – Previously the Court made an ex parte order extending the period for service of the writ – Liquidators had taken over the conduct of the litigation that had been previously been commenced by receivers in the company name – Whether in considering if the plaintiff had shown good reason for the extension the conduct of the receivers in issuing the proceeding but choosing not to serve the proceedings should be taken into account – Discussion of nature of proceeding to rehear an application previously made ex parte - Application granted – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 46.08(b), r 5.12.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M D Wyles QC with Dr A P Trichardt	Johnson Winter & Slattery
For the first Defendant	Mr M Osborne QC with Mr J P Tomlinson	SBA Law
For seventh to fourteenth Defendants	Mr J Masters	Strongman & Crouch
For sixth, fifteenth and sixteenth Defendants	Mr J P Slattery	Wotton & Kearney
For seventeenth Defendant	Mr D R Luxton	CBP Lawyers

TABLE OF CONTENTS

Introduction.......................................................................................................................... 1
Nature of this application.................................................................................................. 4
The Rules.............................................................................................................................. 7
Principles to be applied..................................................................................................... 8
The plaintiff’s submissions............................................................................................. 14
The defendants’ submissions.......................................................................................... 15
The plaintiff’s submissions in reply............................................................................... 20
The plaintiff’s’ evidence................................................................................................... 22
The defendants’ evidence................................................................................................. 27
Relationship between company, liquidator and receiver........................................... 30
Civil Procedure Act........................................................................................................... 38
Prejudice to the defendants............................................................................................. 45
Good reason and the circumstances of the case............................................................ 46
Conclusion.......................................................................................................................... 49
Orders.................................................................................................................................. 51

HIS HONOUR:

Introduction

The introduction and background to this matter are set out in the reasons for judgment in proceeding number 1136 of 2014 (the 2014 proceeding) given on 15 April 2014 (the Reasons).[1]
[1]See Re APCH Ltd (in liquidation) [2014] VSC 190.

In this matter I have before me several summonses filed in the 2014 proceeding and in proceeding number 1341 of 2013…

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 Re APCH Ltd (in liquidation) (No 3)

Details

AGLC: Re APCH Ltd (in liquidation) (No 3) [2014] VSC 456
Case: [2014] VSC 456
Decision Date: 17 September 2014

CaseChat Overview and Summary

The matter involved the liquidators of APCH Ltd, who were the applicants, and the defendants in a proceeding brought by the liquidators. The applicants sought to set aside orders that had extended the period for service of the writ, as well as to set aside the service of the writ itself. The proceeding was before the Supreme Court of Victoria. The applicants were contesting the validity of the extensions of time and the service, arguing that they had not been properly served within the extended period. They contended that the orders should be set aside due to a lack of good reason for the extensions and the improper service.

The court had to determine whether the liquidators had shown good reason for the extensions and if the writ had been served within the extended period. Another issue was whether the conduct of the receivers, who had initially commenced the proceeding but failed to serve it, should be taken into account in assessing the liquidators' conduct. The court also needed to consider the appropriate procedure for rehearing an application that had previously been made ex parte.

The court held that the liquidators had not demonstrated good reason for the extensions and that the writ had not been served within the extended period. The court further determined that the receivers' conduct in initiating the proceeding but not serving it should be considered in assessing the liquidators' actions. The court found that the liquidators had not adequately explained the delay in serving the writ, and that the extensions had not been justified. The court granted the application to set aside the orders and the service of the writ, emphasising the importance of the proper service of proceedings and the need for good reason to extend the time for service.

The court's final order was that the orders extending the period for service of the writ and the service of the writ itself were set aside. The court emphasised the need for diligent service of proceedings and the importance of providing good reason for any extensions of time. The court also noted the significance of considering the conduct of all parties involved in the litigation when assessing the validity of the extensions and service.

Orders