| 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…
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- AGLC
- Re Shangri-La Construction Pty Ltd [2023] VSC 503
- Case
- [2023] VSC 503
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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