Re Convector Grain Pty Ltd (In Liquidation) (No 2) - [2018] VSC 33

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S CI 2016 03434

IN THE MATTER OF CONVECTOR GRAIN PTY LTD (IN LIQUIDATION)

BETWEEN:

CONVECTOR GRAIN PTY LTD (IN LIQUIDATION)	Appellant
and
LAUREVILLE PTY LTD	Respondent

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JUDGE:	Robson J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2017
DATE OF JUDGMENT:	8 February 2018
CASE MAY BE CITED AS:	Re Convector Grain Pty Ltd (In Liquidation) (No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 33

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PRACTICE AND PROCEDURE – Appeal from decision of associate judge – Originating process seeking relief under s 588FF of the Corporations Act 2001 (Cth) – Originating process amended prior to the return date but after the expiry of time for service – Application to amend return date to validate service – Discretion invalidly exercised – Appeal allowed – Rules 3.02 and 36.03 Supreme Court (General Civil Procedure) Rules 2015 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr L Glick QC with Mr P Fary	Frenkel Partners
For the Respondent	Mr A P Trichardt	Charles Fice Solicitors

TABLE OF CONTENTS

Introduction.......................................................................................................................... 1
The decision of the associate judge.................................................................................. 3
The parties’ arguments..................................................................................................... 10
Was there an amendment of the originating process?................................................. 13
Rule 3.02.............................................................................................................................. 14
Sections 1322(2) and 1322(4)(a)........................................................................................ 17
Orders made....................................................................................................................... 17
The grounds of appeal...................................................................................................... 18
Relevant rules.................................................................................................................... 19
Was there an amendment?............................................................................................... 20
Which is the correct rule?................................................................................................. 23
Did the associate judge err in the exercise of his Honour’s discretion?................... 26
In re-exercising the discretion, should I extend the time for service?....................... 30
Conclusion.......................................................................................................................... 31

HIS HONOUR:

Introduction

On 25 August 2016, Convector Grain Pty Ltd (in liquidation) and its liquidators issued an originating process against Laureville Pty Ltd (‘Laureville’) seeking orders under s 588FF(1) of the Corporations Act 2001 (Cth) (‘Corporations Act’). For ease of reference I will refer to the plaintiffs collectively as ‘Convector Grain.’

The originating process filed on 25 August 2016 was one of eight originating processes filed on that day on behalf of Convector Grain, and was filed one day within the applicable three-year limitation period.[1] The return date endorsed on the originating process initially fixed the matter to be heard by an associate judge on 16 September 2016. The Supreme Court (Corporations) Rules 2013 (‘Corporations Rules’) require an originating process to be served on a defendant ‘[a]s soon as practicable after filing ... and, in any case, at least 5 days before the date fixed for hearing.’[2] In this case, that meant that Convector Grain ought to have served the originating process on Laureville by 11 September 2016 at the latest. However, service was not effected by that date. On 3 November 2016, Laureville’s solicitor received service of an amended originating process with the return date of 3 February 2017.
[1]See Corporations Act s 588FF(3)(a)(i).
[2]Corporations Rules r 2.7.

On 17 November 2016, Laureville filed and served an interlocutory process seeking orders that the amendments made to the originating process served on Laureville,…

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: [2018] VSC 33
Decision Date: 8 February 2018

CaseChat Overview and Summary

In the matter of Re Convector Grain Pty Ltd (In Liquidation) (No 2), the Supreme Court of Victoria dealt with an appeal from a decision made by an associate judge. The central dispute arose from an originating process filed under section 588FF of the Corporations Act 2001, seeking relief related to the company's liquidation. The controversy centred on the amendment of the originating process, which occurred after the service period had expired but before the return date. The liquidators applied to amend the return date to validate the service, but the associate judge declined the application.

The court was tasked with determining whether the associate judge's decision to refuse the application was correct, and whether the discretion exercised was valid. Specifically, the court examined the relevant procedural rules, including rules 3.02 and 36.03 of the Supreme Court (General Civil Procedure) Rules 2015, which govern the amendment of originating processes and the setting of return dates. The primary legal issue was whether the associate judge had the authority to refuse the application to amend the return date in the given circumstances.

The Supreme Court held that the associate judge had invalidly exercised their discretion. The court found that the rules did not permit the associate judge to refuse the application to amend the return date without considering the merits of the application. The associate judge's refusal was based on a misinterpretation of the rules, leading to an invalid exercise of discretion. Consequently, the appeal was allowed, and the matter was remitted back for further consideration. This decision underscores the importance of correctly applying procedural rules and exercising judicial discretion in line with statutory and regulatory requirements.

Orders