Re Elite Project Management & Associates Pty Ltd - [2025] VSC 388

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2024 05655

IN THE MATTER of ELITE PROJECT MANAGEMENT & ASSOCIATES PTY LTD (ACN 132 752 071)

BETWEEN:

BULLET MASONRY PTY LTD (ACN 643 529 766)	Plaintiff
v
ELITE PROJECT MANAGEMENT & ASSOCIATES PTY LTD (ACN 132 752 071)	Defendant

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JUDGE:	Efthim AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 May 2025
DATE OF RULING:	24 June 2025
CASE MAY BE CITED AS:	Re Elite Project Management & Associates Pty Ltd
MEDIUM NEUTRAL CITATION:	[2025] VSC 388

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CORPORATIONS – Winding up in insolvency – Six-month period for determination of application – Period expired before application determined – No winding up order made – Whether the period for determination of application is to be extended under slip rule – Hrycenko v Hrycenko (2022) 294 FCR 233 referred to – Donchiod Pty Ltd (In Liq) v Merrion B Pty Ltd (2024) 74 VR 430 applied – Corporations Act 2001 (Cth), s 459R – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 36.07 – Finding that the period under s 459R is to be extended under slip rule.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Petras	Broadside Lawyers Pty Ltd
For the Defendant	Mr B Devanny	Pera Lawyers
For the First Other Party	Mr J Searle, solicitor	Results Legal
For the Second Other Party	No Appearance	Madgwicks

HIS HONOUR:

On 23 October 2024 the plaintiff, Bullet Masonry Pty Ltd, by an originating process, applied to wind up the defendant, Elite Project Management & Associates Pty Ltd, pursuant to ss 459A and 459P of the Corporations Act 2001 (Cth) (‘the Act’).
On 26 February 2025, a judicial registrar ordered that this proceeding be listed for hearing before an associate judge on 28 May 2025.
Section 459R of the Act provides:
Period within which application must be determined
(1)An application for a company to be wound up in insolvency is to be determined within 6 months after it is made.
(2)The Court may by order extend the period within which an application must be determined, but only if:
(a)the Court is satisfied that special circumstances justify the extension; and
(b)the order is made within that period as prescribed by subsection (1), or as last extended under this subsection, as the case requires.
(3)An application is, because of this subsection, dismissed if it is not determined as required by this section.
(4)An order under subsection (2) may be made subject to conditions.
The hearing was listed more than six months after the application was made. No order was made by the judicial registrar to extend time pursuant to s 459R of the Act and, this proceeding was dismissed by s 459R(3) on 23 April 2025.
The plaintiff, Bullet Masonry Pty Ltd, applies pursuant to r 36.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to correct the order of the judicial registrar under the ‘slip rule’.
Rule 36.07 provides:
Amendment of judgment or…

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: [2025] VSC 388
Decision Date: 24 June 2025

CaseChat Overview and Summary

The case of Re Elite Project Management & Associates Pty Ltd involved the liquidators of the company seeking a winding up order due to insolvency. The dispute centred on whether the six-month period stipulated for the determination of the application should be extended under the slip rule provisions, given that the period had expired without a decision on the application. The matter was heard in the Supreme Court of Victoria. The central legal issue was whether the six-month period for determining the winding up application could be extended under the slip rule, considering the specific circumstances and statutory framework.

The court was required to interpret and apply the relevant statutory provisions, specifically section 459R of the Corporations Act 2001, and the applicable rules under the Supreme Court (General Civil Procedure) Rules 2015. The court also needed to assess whether the delay in making a decision on the application was excusable and whether an extension of the period would be just and equitable. The court considered the principles established in Hrycenko v Hrycenko and the subsequent application of those principles in Donchiod Pty Ltd (In Liq) v Merrion B Pty Ltd. The court determined that the statutory period for determination of the application could indeed be extended under the slip rule in light of the circumstances of this case.

The court found that the period for determining the winding up application should be extended, applying the principles of the slip rule as set out in relevant case law. It was concluded that the delay was excusable and an extension was just and equitable given the particular facts of the case. Consequently, the six-month period for determining the application was extended, allowing the liquidators to continue with their proceedings. The court's decision affirmed that the slip rule could be applied in this context to achieve a fair outcome.

Orders