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Re Shangri-La Construction Pty Ltd

Re Shangri-La Construction Pty Ltd

Case [2023] VSC 503 24 August 2023

Limitation Periods

Jurisdiction

Specific Performance

Corporate Law & Governance

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2023 03028

IN THE MATTER of SHANGRI-LA CONSTRUCTION PTY LTD (ACN 130 534 244) (UNDER EXTERNAL ADMINISTRATION)

BETWEEN:

VICTORIAN WORKCOVER AUTHORITY	Plaintiff
v
SHANGRI-LA CONSTRUCTION PTY LTD (ACN 130 534 244) (UNDER EXTERNAL ADMINISTRATION)	Defendant
CERTAIN UNDERWRITERS AT LLOYDS OF LONDON	Interested Party

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JUDGE:	Gardiner AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August 2023
DATE OF JUDGMENT:	24 August 2023
CASE MAY BE CITED AS:	Re Shangri-La Construction Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 503

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CORPORATIONS — Application for leave to proceed pursuant to s 500(2) of the Corporations Act2001 (Cth) (‘Act’) — Plaintiff commenced proceeding within the limitation period prescribed by s 5(1)(d) of the Limitation of Actions Act1958 (Vic) (‘Limitation of Actions Act’) against the defendant pursuant to s 369 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) seeking recovery of payments made to injured worker — Defendant subsequently went into creditors’ voluntary liquidation under Part 5.5 of the Act — Order made by a Judicial Registrar of the County Court of Victoria extending validity of writ — Writ served on defendant during period of such extension but when proceeding was stayed by operation of s 500(2) of the Act — Defendant’s insurance underwriters contended that order for leave should not be made nunc pro tunc from the date the defendant went into liquidation as to do so would deprive it of a limitation period defence it contended had subsequently come into existence — Plaintiff’s proceeding was issued within the six-year period prescribed by s 5(1) of the Limitation of Actions Act and no defence of the proceeding being barred by limitation came into existence — Orders sought by plaintiff nunc pro tunc from the date that defendant went into liquidation would not deprive the interested party of any limitation period defence available to it — Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 applied — Re Link Construction (NSW) Pty Ltd (in liq) [2016] NSWSC 684; HFPS Pty Ltd (Trustee) v Tamaya Resources Ltd (in liq) (No 1) [2016] FCA 442; FF (R & D) Pty Ltd v Australian Securities and Investments Commission [2017] VSC 482 distinguished — Orders made for leave to proceed nunc pro tunc from date that defendant went into liquidation.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M Cameron	Russell Kennedy
For the Interested Party	Mr C Viti, solicitor	Moray & Agnew Lawyers

TABLE OF CONTENTS

Factual background........................................................................................................................... 3

VWA’s evidence................................................................................................................................. 4

Evidence of the Underwriters.......................................................................................................... 7

The parties’ submissions.................................................................................................................. 8

Submissions of VWA.................................................................................................................... 8
The Underwriters’ submissions................................................................................................ 14

Consideration.................................................................................................................................... 22

HIS HONOUR:

The plaintiff, Victorian WorkCover Authority (‘VWA’), applies by an originating process filed 11 July 2023 for leave nunc pro tunc to proceed from 31 March 2023 against Shangri-La Construction Pty Ltd (‘Shangri-La’) pursuant to s 500(2) of the Corporations Act 2001 (Cth) (‘Act’) in proceeding CI-21-02103…

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 Shangri-La Construction Pty Ltd

Details

AGLC: Re Shangri-La Construction Pty Ltd [2023] VSC 503
Case: [2023] VSC 503
Decision Date: 24 August 2023

CaseChat Overview and Summary

In the County Court of Victoria, the plaintiff sought leave to proceed with their claim against the defendant, Shangri-La Construction Pty Ltd, which had entered into creditors’ voluntary liquidation. The plaintiff had filed the proceeding within the prescribed limitation period and sought recovery of payments made to an injured worker, in accordance with the statutory provisions of the Workplace Injury Rehabilitation and Compensation Act 2013. The defendant’s insurance underwriters opposed the plaintiff’s application for leave to proceed, arguing that granting leave nunc pro tunc, from the date of the defendant’s liquidation, would deprive them of a limitation period defence.

The court was required to determine whether the orders sought by the plaintiff, which would permit the proceeding to continue from the date of the defendant’s liquidation, would infringe upon any limitation period defences that the defendant’s insurance underwriters contended had come into existence. The court needed to balance the plaintiff’s right to a timely resolution of their claim against the potential prejudice to the defendant’s insurance underwriters if the limitation period were to be disregarded.

In reaching its decision, the court considered the precedents set by Van Leer Australia Pty Ltd v Palace Shipping KK, Re Link Construction (NSW) Pty Ltd (in liq), HFPS Pty Ltd (Trustee) v Tamaya Resources Ltd (in liq), and FF (R & D) Pty Ltd v Australian Securities and Investments Commission. The court held that the plaintiff’s proceeding was issued within the limitation period prescribed by the Limitation of Actions Act, and no new limitation period defence had come into existence. The court concluded that granting the plaintiff’s orders nunc pro tunc from the date of the defendant’s liquidation would not prejudice the defendant’s insurance underwriters, as they had not demonstrated any such defence. The court therefore granted the plaintiff’s application for leave to proceed nunc pro tunc from the date of the defendant’s liquidation.

Orders