Re RCG CBD Pty Ltd (in liq) - [2016] NSWSC 1489

Supreme Court

New South Wales

Medium Neutral Citation: In the matter of RCG CBD Pty Ltd (in liq) [2016] NSWSC 1489
Hearing dates: 14 October 2016
Decision date: 14 October 2016
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
The Court orders pursuant to r 6.19 of the Uniform Civil Procedure Rules 2005 (NSW) that the Plaintiffs be granted leave nunc pro tunc, to the extent that any such leave is required, to bring proceedings 2016/195008 and join, as defendants, the Defendants in these proceedings. The Court orders that the Notice of Motion filed by the First, Fifth, Seventh and Tenth Defendants on 26 August 2016, and the Interlocutory Processes filed by the Second Defendant on 25 August 2016 and by the Third Defendant on 25 August 2016 be dismissed. No order made as to costs.

Catchwords: PRACTICE AND PROCEDURE — Application for leave to join defendants pursuant to r 6.19 of the Uniform Civil Procedure Rules 2005 (NSW) – where plaintiffs sought leave nunc pro tunc to join defendants to proceedings while not conceding such leave was necessary – where the proceedings against each of the defendants involved common issues as to solvency of a company – whether the Court should exercise discretion to grant leave to join defendants in circumstances where there is common issue as to solvency.
PROCEDURE — Costs — where plaintiffs sought orders that defendants be joined in proceedings – where plaintiffs initially indicated leave was not required to join defendants but later sought leave while not conceding such leave was required – whether costs order should be made in circumstances where any such order would require differentiation between issues.
Legislation Cited: - Corporations Act 2001 (Cth), s 588FF
- Uniform Civil Procedure Rules 2005 (NSW), r 6.19
Cases Cited: - Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525; (2002) 55 NSWLR 64
- Lord v Agreserves Australia Ltd [2006] FCA 598
- Re ACN 107 936 827 Pty Ltd (formerly known as Eaton Group Australia Pty Ltd) (in liq) (Supreme Court of New South Wales, Black J, 21 September 2015, unreported)
- Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Category: Procedural and other rulings
Parties: Mitchell Warren Ball in his capacity as the liquidator of RCG CBD Pty Ltd (in liquidation) (First Plaintiff)
RCG CBD Pty Ltd (in liquidation) (Second Plaintiff)
Banq Accountants and Advisors (First Defendant)
Wenman Brimak Investments Pty Ltd (Second Defendant)
Statewide Printing Group Pty Ltd (Third Defendant)
Sivasli Pty Ltd (Fifth Defendant)
Harry Patsouris (Sixth Defendant)
Kito Investments Pty Ltd (Seventh Defendant)
Fox & Staniland Pty Ltd (Eighth Defendant)
Kazzi Investments Pty Ltd (Ninth Defendant)
Coolfind Pty Ltd (Tenth Defendant)
Representation:
Counsel:
A Narayan (Solicitor) (Plaintiff)
P Afshar (First, Fifth, Seventh and Tenth Defendants)
D R Stack (Second Defendant)
D Barlin (Third Defendant)
S Jones (Solicitor) (Sixth Defendant)
B Campbell (Solicitor) (Eighth Defendant)
Solicitors:
Craddock Murray Neuman (Plaintiff)
Spinks Eagle Lawyers (First, Fifth, Seventh…

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: [2016] NSWSC 1489
Decision Date: 14 October 2016

CaseChat Overview and Summary

The matter involved an application for leave to join defendants, pursuant to Rule 6.19 of the Uniform Civil Procedure Rules 2005 (NSW), in proceedings concerning the liquidation of RCG CBD Pty Ltd. The plaintiffs sought leave nunc pro tunc to join defendants in the existing proceedings, despite not conceding that such leave was necessary. The central issue was whether the Court should exercise its discretion to permit the joining of defendants, given that the proceedings against each defendant involved common questions about the solvency of the company.

The court needed to decide whether it was appropriate to exercise its discretion to allow the joinder of defendants, considering the common issues of solvency. The plaintiffs initially indicated that leave was not required to join the defendants but later sought leave without conceding the necessity. The court considered whether the joinder would promote the just and expeditious disposal of the real issues in the proceeding, and whether there was any prejudice to the defendants if the joinder was allowed. The court also weighed the public interest in the consolidation of common issues in a single proceeding.

The court exercised its discretion to grant leave to join the defendants, finding that the joinder would not cause prejudice to the defendants and would promote the just and expeditious disposal of the real issues in the proceeding. The Court concluded that there was no sufficient reason to deny leave, as the common issues of solvency would be more efficiently resolved in a single proceeding. The Court did not make a costs order as it found that any such order would require differentiation between issues, which was not appropriate in the circumstances.

Orders