Re VFS Group Pty Ltd
[2010] VSC 396
•2 September 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
List E
No. 0079 of 2010
IN THE MATTER of VFS GROUP PTY LTD (ACN 121 880 751)
| VFS GROUP PTY LTD (ACN 121 880 751) | Appellant |
| v | |
| BM2008 PTY LTD (IN LIQUIDATION)(ACN 005 762 685) | Respondent |
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JUDGE: | DAVIES J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September 2010 | |
DATE OF JUDGMENT: | 2 September 2010 | |
CASE MAY BE CITED AS: | Re VFS Group Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 396 | |
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CORPORATIONS – Application to set aside statutory demand – Offsetting claim – Order by Associate Judge varying the statutory demand and extending time for compliance with the demand for a period of 3 weeks – Appeal against orders – Time for compliance with the demand expired before appeal due to be heard – Orders not authenticated – Orders recalled by the Associate Judge - Associate Judge made a new order extending time for compliance with the demand to a date after the appeal was to be heard – Whether the Associate Judge had the power to extend the time for compliance after the period for compliance had expired – Whether new order the “last order” for the purposes of s 459F(2)(a)(i) of Corporations Act 2001 (Cth) – Whether new order “finally determined” the application to set aside the statutory demand for the purposes of s 459F(2)(a)(ii) of Corporations Act 2001 (Cth) – Associate Judge had no power to make the new order – Supreme Court (General Civil Procedure) Rules r 59.02 – Corporations Act 2001 (Cth) ss 459C, 459F, 459G, 459J.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr. D H Denton SC with Mr. L M F Watts | Belleli King & Associates |
| For the Respondent | Mr. G T Bigmore QC with Mr. D C Harrison | Cooper Mills Lawyers |
HER HONOUR:
This judgment should be read in conjunction with the judgment given in proceeding number S CI 2010 080 (“the PFL proceeding”).[1]
[1]Re Perth Freight Lines Pty Ltd [2010] VSC 395.
A. Background
On 22 December 2009 the respondent (“BM2008”) served a statutory demand on the appellant (“VFS”) in the amount of $2,577,072.49. The demand was based on a judgment debt that BM2008 had also obtained against Perth Freight Lines Pty Ltd (“PFL”). BM2008 also served a statutory demand on PFL.
VFS and PFL each applied under ss 459G and 459J of the Corporations Act 2001 (Cth) (“the Act”) to set aside their respective statutory demands. PFL’s application is the subject of the PFL proceeding. The applications were heard together before Efthim AsJ on 27 April and 3 June 2010. His Honour delivered judgment in the PFL proceeding on 12 July 2010. That judgment was taken by the parties to be given in both proceedings.[2]
[2]Transcript of proceeding, 1 September 2010, 2 - 3.
On the same day Efthim AsJ made orders in this proceeding in identical terms to the orders made in the PFL proceeding. The Court record of those orders is as follows:
1. The demand be varied to claim $1,948,516.54.
2.Declare the demand to have had effect as so varied from when the demand was served on the company.
3.The period for compliance with the demand is extended to 2 August 2010.
4.The Plaintiff pay 70% of the Defendant’s costs.
On 16 July 2010, VFS lodged an appeal against those orders. The same preliminary issue based on the same facts arose in this proceeding as the preliminary issue that was raised in the PFL proceeding, namely whether the period for compliance with the statutory demand expired before the appeal. As in the PFL proceeding, VFS relies on an order of Efthim AsJ made 26 August 2010 in the following terms:
1. The demand be varied to claim $1,948,516.54.
2.Declare the demand to have had effect as so varied from when the demand was served on the company.
3.The period for compliance with the demand is extended to 4.00 pm on 27 August 2010.
4.The Plaintiff pay 70% of the Defendant’s costs.
5.The Plaintiff pay the costs of this day.
(emphasis added)
In “Other Matters” His Honour wrote:
The order of 12 July 2010 was not authenticated and was recalled. It was the intention of the Court when the order was made that the Plaintiff have right. The Court is of the view that it would be unfair for the Plaintiff to lose that when it appears that a contributing factor was the non-authentication of the order and a misunderstanding by the Plaintiff of the order of 12 July 2010. The Court did not require affidavits to be filed this day as the court was of the view that they were not necessary.
For the same reasons contained in the judgment in the PFL proceeding[3] I have concluded that the appeal is nugatory and should be dismissed.
[3]Perth Freight Lines Pty Ltd [2010] VSC 395.
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