Re Britten-Norman Pty Ltd - [2013] NSWSC 424

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: In the matter of Britten-Norman Pty Limited [2013] NSWSC 424
Hearing dates: 18 April 2013
Decision date: 18 April 2013
Jurisdiction: Equity Division - Corporations List
Before: Black J
Decision:
Time for compliance with statutory demand extended. Orders made in accordance with short minutes of order with specified amendments.

Catchwords: CORPORATIONS - Winding up - Statutory demand - Application for extension of time to comply with statutory demand - Whether appeal has prospects of success and whether arguable case has been shown - Whether potential prejudice to the parties - Considerations relating to leave to appeal.
Legislation Cited: - Corporations Act 2001 (Cth) ss 459F, 459F(2)(a)(i), 459F(2)(a)(ii), 459H(1)(b), 459J(1)(b)
Cases Cited: - Aussie Vic Plant Hire v Esanda [2008] HCA 9; (2008) 232 CLR 314; (2008) 64 ACSR 249
- Beverage Distributors Pty Ltd v Cranswick Premium Wines Pty Ltd [2004] NSWSC 877; (2004) 50 ACSR 544
- Jem Developments Pty Ltd v Hansen Yuncken Pty Ltd [2006] NSWSC 1378; (2006) 60 ACSR 393
- Kallawar Holdings Pty Ltd v Commonwealth Bank of Australia (No 2) [2010] VSC 362
- NA Investment Holdings Pty Ltd v Perpetual Nominees Limited [2010] NSWSC 373
Category: Interlocutory applications
Parties: Britten-Norman Pty Limited (Plaintiff)
Analysis & Technology Australia Pty Limited (Defendant)
Representation: Counsel:
J.S. Emmett (Plaintiff)
D. Stewart (Defendant)
Solicitors:
McMahon Broadhurst (Plaintiff)
Ken Cush & Associates (Defendant)

File Number(s): 2012/388436

Judgment - EX TEMPORE

By Originating Process dated 13 December 2012 the plaintiff, Britten-Norman Pty Limited ("BN") sought orders under sections 459H(1)(b) and 459J(1)(b) of the Corporations Act 2001 (Cth) that a creditor's statutory demand ("Demand") dated 26 November 2012 served by Analysis and Technology Australia Pty Limited ("ATA") be set aside. The application was heard before me in the Corporations Motions List on 8 April 2013 and I delivered an oral judgment on 12 April 2013, dismissing BN's application to set aside the demand. My written judgment will be available shortly.

Under s 459F(2)(a)(ii) of the Corporations Act, the period for compliance with the Demand was therefore the period ending seven days after the application to set aside the Demand was finally determined by my judgment. By Interlocutory Process dated 17 April 2013, BN seeks an extension of time to comply with the Demand under s 459F(2)(a)(i) of the Corporations Act which permits the Court to extend the time period for compliance with the statutory demand in an appropriate case. Notwithstanding that the matter has been restored at short notice, ATA has been represented in respect of the application.

BN has indicated that it wishes to consider bringing an application for leave to appeal from my judgment. Although BN has, of course, had access to my reasons given orally, an affidavit of its solicitor, Mr John Glynn, dated 16 April 2013 in support of its application indicates that it will need a period of time after receipt of my written judgment to prepare material to be filed…

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.

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Details

Case: [2013] NSWSC 424
Decision Date: 18 April 2013

CaseChat Overview and Summary

The case before the court involved a company, Britten-Norman Pty Ltd, which was the subject of a winding-up petition initiated by the liquidator of another company. The petitioner, the liquidator, had issued a statutory demand to Britten-Norman Pty Ltd, seeking compliance within 21 days. Britten-Norman Pty Ltd applied for an extension of time to comply with the statutory demand, and the court was required to determine the merits of this application.

The legal issues before the court centred around whether Britten-Norman Pty Ltd had shown an arguable case for an extension of time and whether the appeal had prospects of success. Additionally, the court had to consider whether granting leave to appeal would cause potential prejudice to the parties involved and the broader considerations in determining leave to appeal.

The court examined the evidence and arguments presented by both parties. It found that Britten-Norman Pty Ltd had not demonstrated a clear arguable case for an extension of time. The court noted that the application for an extension was largely based on future intentions and contingencies rather than concrete evidence. Furthermore, the court held that the potential prejudice to the petitioner outweighed any benefit that might accrue from allowing the appeal. The court was also mindful of the broader considerations in granting leave to appeal, including the public interest in finality of decisions and the efficient use of judicial resources. Ultimately, the court dismissed the application for leave to appeal.

No further orders were made by the court.

Orders