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Re Bias Boating Pty Ltd

Re Bias Boating Pty Ltd

Case [2017] NSWSC 1524 9 November 2017

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Limitation Periods

Civil Penalty

Civil Litigation & Procedure

Corporate Law & Governance

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Bias Boating Pty Ltd [2017] NSWSC 1524
Hearing dates: 6 November 2017
Date of orders: 09 November 2017
Decision date: 09 November 2017
Jurisdiction: Equity - Corporations List
Before: Brereton J
Decision:
Leave be granted to the plaintiff to join in the originating process each of the 23 defendants named in it.

Catchwords:
PRACTICE AND PROCEDURE – whether claim under (CTH) Corporations Act 2001, s 588F, validly made in the absence of leave under (NSW) Uniform Civil Procedure Rules 2005, r 6.19 – held, claim not invalid.
PRACTICE AND PROCEDURE – whether if leave were granted under r 6.19, proceedings should be taken to have commenced outside limitation period – held, they should not be.
Legislation Cited: (CTH) Corporations Act 2001, s 91, s 436A, s 471B, s 500(2), s 588FF, s 1635(4)
(CTH) Insolvency Law Reform Act 2016
(NSW) Uniform Civil Procedure Rules 2005, r 6.18, r 6.19, r 6.23, r 6.24, r 6.28, r 16.28
Cases Cited: Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734
Bell Group Ltd v Westpac Banking Corp (2000) 104 FCR 305; [2000] FCA 439
BHG Nominees Pty Ltd v Ellis Young Investments Pty Ltd (1998) 16 ACLC 1539
Ceric v C E Heath Underwriting & Insurance (Australia) Pty Ltd (1994) 4 NTLR 135
Coastal Constructions Pty Ltd (In liq), Re (1994) 13 ACSR 329
Dean-Willcocks v Air Transit International Pty Ltd (2002) 55 NSWLR 64
Fernance v Nominal Defendant (1989) 17 NSWLR 710
Grant Samuel Corporate Finance Pty Ltd v Fletcher (2015) 254 CLR 477
Jones v Sun Engineering (Qld) Pty Ltd [2017] WASC 195
Moore v Scolaro’s Concrete Constructions Pty Ltd (in liq) (2004) Aust Torts Reports 81-767; [2004] VSCA 152
Qantas Airways Ltd v AF Liddle Pty Ltd [1981] 2 NSWLR 34
Sihota v Pacific Sands Motel (2003) 56 NSWLR 721; [2003] NSWSC 119
Testro Bros Consolidated Ltd, Re [1965] VR 18
Category: Principal judgment
Parties: Ian James Purchas (first plaintiff)
Bias Boating Pty Ltd (second plaintiff)
Inprint Pty Ltd (fourth defendant)
Commissioner of State Revenue (Qld) (eleventh defendant)
Marine Distributors International Pty Ltd (twelfth defendant)
RFD (Australia) Pty Ltd (seventeenth defendant)
Coast International Pty Ltd (nineteenth defendant)
Representation:
Counsel:
M. Castle (plaintiffs)
G. George (fourth defendant)
I. Mescher (eleventh defendant)
J. Lo Schiavo (twelfth defendant and nineteenth defendant)
D. Hume (seventeenth defendant)
Solicitors:
Gillis Delaney Lawyers (plaintiffs)
David R Purvis & Co (fourth defendant)
Crown Solicitors Office (eleventh defendant)
Certus Legal Group (twelfth defendant and nineteenth defendant)
King & Wood Mallesons (seventeenth defendant)

File Number(s): 2017/255627

Judgment

The first plaintiff Ian James Purchase was appointed administrator of the second plaintiff Bias Boating Pty Ltd on 25 August 2014 pursuant to (CTH) Corporations Act 2001, s 436A, and became its liquidator consequent upon a resolution of the creditors at the second meeting of creditors on 29 September 2014. In those circumstances, the relation-back day – whether or not the amended definition of…

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 Bias Boating Pty Ltd

Details

AGLC: Re Bias Boating Pty Ltd [2017] NSWSC 1524
Case: [2017] NSWSC 1524
Decision Date: 09 November 2017

CaseChat Overview and Summary

The matter before the court involved Re Bias Boating Pty Ltd, where the issue at hand was whether a claim under section 588F of the Corporations Act 2001 could be validly made in the absence of leave under rule 6.19 of the Uniform Civil Procedure Rules 2005. The primary legal issue the court needed to address was whether the absence of such leave rendered the claim invalid, and if granting such leave would mean the proceedings were taken to have commenced outside the limitation period.

The court examined the relevant statutory provisions and the rules of civil procedure, concluding that the absence of leave under rule 6.19 did not invalidate the claim. The court reasoned that the requirement for leave under rule 6.19 did not affect the substantive validity of the claim. Moreover, the court held that if leave were granted, the proceedings should not be deemed to have commenced outside the limitation period. The court found that the limitation period was not triggered by the application for leave but rather by the initial filing of the claim.

This decision underscores the court's interpretation of procedural rules and their impact on the validity of statutory claims. The court's reasoning ensured that the procedural requirement for leave did not undermine the substantive rights of the claimants. The final orders of the court confirmed the validity of the claim and clarified the timeline for limitation periods in relation to the application for leave.

Orders