CULVE ENGINEERING PTY LTD (ACN 004 794 825);	First Appellant/Defendant
TENA DENHAM NOMINEES PTY LTD (ACN 005 247 709; AND	Second Appellant/Defendant
SANDRA CERRATO	Third Appellant/Defendant
v
APOLLO GENERAL ENGINEERING (AUST) PTY LTD (IN LIQUIDATION) (ACN 005 232 119);	First Respondent/Plaintiff
MATTHEW JAMES JESS;	Second Respondent/Plaintiff
PAUL ANDREW BURNESS;	Third Respondent/Plaintiff
THOMSONS LAWYERS;	Fourth Respondent/Plaintiff
STEWART MAIDEN; AND	Fifth Respondent/Plaintiff
SALVATORE GUCCIONE	Third Party

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2016
DATE OF JUDGMENT:	6 September 2016
CASE MAY BE CITED AS:	Re Apollo General Engineering (Aust) Pty Ltd (in liq)
MEDIUM NEUTRAL CITATION:	[2016] VSC 533

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PRACTICE AND PROCEDURE – Appeal against an order of an Associate Justice substituting the appellant, as the executrix of the estate of a deceased defendant, in a proceeding brought by the liquidators of a company in which the deceased defendant had been a director – The liquidators claimed damages against the deceased defendant for insolvent trading and challenging other alleged uncommercial transactions.

Application under r 9.09 of the Supreme Court (General Civil Practice) Rules 2005 – Whether the power given by the rule to substitute a defendant is a discretionary power – Whether the provisions of the Civil Procedure Act 2008 informed the exercise of the alleged discretionary power in r 9.09 – Whether Associate Justice entitled to take into account prejudice to substituted defendant in not having evidence of the deceased director – Held the power under r 9.09 is not discretionary – Held that the word “may” in the rule was permissive and required the Court to make the order if the conditions provided in s 29 were satisfied – Appeal dismissed – s 29 Administration and Probate Act1958.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr J W S Peters QC with Ms C G Rome-Sievers	Baker Jones
For the First to Third Respondents	Mr M Osborne QC with Mr J Kohn	B2B Lawyers

HIS HONOUR:

Introduction

In March 2013, the first plaintiff, Apollo General Engineering (Aust) Pty Ltd (in liquidation) (Apollo) and the second and third plaintiffs, the liquidators of Apollo, Matthew James Jess and Paul Andrew Burness, instituted proceedings by way of an originating motion against Culve Engineering Pty Ltd (Culve), Tena Denham Nominees Pty Ltd (Tena Denham), and Rocco Cerrato.

On 14 August 2014, the third defendant, Rocco Cerrato died. His daughter Sandra Cerrato was named as executrix of the late Rocco Cerrato’s will. On 3 March 2015, the plaintiffs sought an order that Sandra Cerrato (in her capacity as executrix of the estate of the late Rocco Cerrato) be added in substitution for Rocco Cerrato as the third defendant in this proceeding.

On 18 September 2015, an Associate Justice ordered, pursuant to r 9.09 of the Supreme Court (General Civil…

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 Apollo General Engineering (Aust) Pty Ltd (in liq)

Details

AGLC: Re Apollo General Engineering (Aust) Pty Ltd (in liq) [2016] VSC 533
Case: [2016] VSC 533
Decision Date: 6 September 2016

CaseChat Overview and Summary

The appellant, as executrix of the estate of a deceased defendant, sought to appeal an order by an Associate Justice of the Supreme Court, who substituted her as the defendant in a proceeding brought by the liquidators of Apollo General Engineering (Aust) Pty Ltd. The liquidators were pursuing damages against the deceased defendant for insolvent trading and other alleged uncommercial transactions. The substitution was made under rule 9.09 of the Supreme Court (General Civil Practice) Rules 2005. The primary legal issues revolved around the nature of the power granted by rule 9.09, specifically whether it was a discretionary power, and if so, whether the provisions of the Civil Procedure Act 2008 informed the exercise of this power. Additionally, the court had to determine if the Associate Justice was entitled to consider the prejudice to the substituted defendant in not having the evidence of the deceased director.

The court held that the power under rule 9.09 was not discretionary but mandatory if the conditions under section 29 of the Administration and Probate Act 1958 were satisfied. The use of the word "may" in rule 9.09 was permissive, meaning that if the specified conditions were met, the court was required to make the substitution order. The court further held that the provisions of the Civil Procedure Act 2005 did not alter the mandatory nature of the rule. The court also ruled that the Associate Justice was not entitled to consider the prejudice to the substituted defendant in not having the evidence of the deceased director, as the focus should be on the satisfaction of the statutory conditions.

The appeal was dismissed, and the substitution order made by the Associate Justice was upheld. The court's decision emphasised the mandatory nature of the substitution order under rule 9.09 when the statutory conditions were met, and clarified that considerations of prejudice to the substituted defendant were not relevant in the exercise of this power. This ruling underscores the importance of strictly adhering to the statutory conditions when making a substitution order under the relevant rules and acts.

Orders