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Robowash Pty Ltd v Robowash Finance Pty Ltd

Robowash Pty Ltd v Robowash Finance Pty Ltd

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Case Copied 19 December 2000 27 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: ROBOWASH PTY LTD -v- ROBOWASH FINANCE PTY LTD [2000] WASCA 409

CORAM: KENNEDY J
WALLWORK J
ANDERSON J

HEARD: 11 NOVEMBER 1999

DELIVERED : 19 DECEMBER 2000

FILE NO/S: FUL 136 of 1999

BETWEEN: ROBOWASH PTY LTD (ACN 051 785 203)
Appellant
AND
ROBOWASH FINANCE PTY LTD (ACN 062 596 203)
Respondent

Catchwords:

Corporations law - Application to set aside statutory demand - Whether application properly made - Whether a failure to serve a complete copy of the annexures to the supporting affidavit a failure to serve a copy of the affidavit

Legislation:

Corporations Law, s459G

Result:

Appeal allowed

Representation:

Counsel:

Appellant: Mr D H Solomon
Respondent: Mr B S Dodd

Solicitors:

Appellant: Solomon Brothers
Respondent: Mallesons Stephen Jaques

Case(s) referred to in judgment(s):

Bailey v Hinch [1989] VR 78
Carter v Roberts [1903] 2 Ch 312
Cooke v Vaughan (1838) 4 M&W 69; 150 ER 1346
Crombie v Uniting Church Trust (1997) 17 WAR 291
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Eng Mee Yong v Letchumanan s/o Velayutham [1980] AC 331
Hassle v Commissioner of Patents (1987) 9 IPR 565
Re Hinchliffe [1895] 1 Ch 117
Re Koscot Interplanetary (UK) Ltd [1972] 3 All ER 829
Re Timberworld Pty Ltd, unreported; SCt of Tas; 15 May 1991
Spice v Bacon (1877) 2 Ex D 463
Tebbutt v Ambler (1839) 7 Dowl 674
The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40

Case(s) also cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454
Barristers' Board of Western Australia v Tranter Corporation Pty Ltd [1976] WAR 65
BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756
Carstairs v Carstairs, unreported; SCt of WA (Templeman J); Library No 960625; 3 October 1996
Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37
Re Commercial Trade Finance Pty Ltd (1995) 19 ACSR 188
Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Crowe, In the Marriage of (1988) 12 FamLR 696
Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452
Hunter Resources Ltd v Melville (1988) 164 CLR 234
Jones v Dunkel (1959) 101 CLR 298
Manning v Talgarth Enterprises Pty Ltd, unreported; SCt of WA (Malcolm CJ); Library No 960374; 18 July 1996
Manson v Ponninghaus [1911] VLR 239
National Mutual Fire Insurance Co Ltd v Commonwealth [1981] 1 NSWLR 400
Nationwide News Pty Ltd v Bradshaw (1986) 84 FLR 49
Niemann v Electronic Industries Ltd [1978] VR 431
Pacific Capital Ltd v BBC Hardware Ltd (1995) 13 ACLC 1652
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Pearce (1992) 7 WAR 395
The Roy Morgan Research Centre Pty…

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: [2000] WASCA 409
Decision Date: 19 DECEMBER 2000

CaseChat Overview and Summary

The case of Robowash Pty Ltd v Robowash Finance Pty Ltd involved a dispute concerning the validity of an application to set aside a statutory demand. The applicant, Robowash Finance Pty Ltd, sought to have the statutory demand set aside, arguing that the respondent, Robowash Pty Ltd, had failed to comply with certain statutory requirements. The matter was heard in the Supreme Court of Victoria. The central legal issue before the court was whether the application to set aside the statutory demand was properly made, specifically whether the requirement to serve a copy of the supporting affidavit and its annexures was satisfied.

The court examined the statutory provisions under s 459G of the Corporations Law, which outlines the conditions for an application to set aside a statutory demand. The key issue was whether the annexures to the affidavit were required to be served within the 21-day period, in addition to the affidavit itself. The respondent argued that only the affidavit needed to be served, not the annexures. The court considered the reasoning of Gummow J in David Grant & Co Pty Ltd v Westpac Banking Corporation, where it was held that strict compliance with the statutory provisions was necessary and that the phrase "may only" in s 459G imposed a requirement as an essential condition of the right to apply to set aside the demand. The court concluded that the requirement to serve a copy of the supporting affidavit within the specified period did not extend to annexures unless explicitly stated.

The Supreme Court of Victoria ultimately found in favour of the applicant, Robowash Finance Pty Ltd. The court held that the respondent had failed to serve a complete copy of the annexures to the affidavit within the 21-day period, which was a requirement for a valid application under s 459G. Therefore, the application to set aside the statutory demand was not properly made. The court dismissed the appeal by Robowash Pty Ltd, confirming that strict compliance with statutory provisions was necessary to maintain the integrity of the legal process.

As a result of the court's decision, the statutory demand remained in effect, and the applicant's right to pursue the debt through the statutory demand process was upheld. The respondent's application to set aside the statutory demand was denied, and the court did not grant leave to appeal the decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WALLWORK J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: WALLWORK J

The necessity for strict compliance with the provisions of s 459G(3) was confirmed by Gummow J, with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed, in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 where, at 276 ‑ 277, his Honour said:"In providing that an application to the court for an order setting aside a statutory demand "may only" be made within the twenty-one day period there specified and that an application is made in accordance with s 459G only if, within those twenty-one days, a supporting affidavit is filed and a copy thereof and of the applications are served, sub-ss (2) and (3) of s 459G attach a limitation or condition upon the authority of the court to set aside the demand. In this setting, the use in s 459G(2) of the term "may" does not give rise to the considerations which apply where legislation confers upon a decision-maker an authority of a discretionary kind and the issue is whether "may" is used in a facultative and permissive sense or an imperative sense …. Here, the phrase "[a]n application may only be made within twenty-one days" should be read as a whole. The force of the term "may only" is to define the jurisdiction of the court by imposing a requirement as to time as an essential condition of the new right conferred by s 459G. An integer or element of the right created by s 459G is its exercise by application made within the time specified. To adapt what was said by Isaacs J in The Crown v McNeil [(1922) 31 CLR 76 at 100-101], it is a condition of the gift in sub-s (1) of s 459G that sub-s (2) be observed and, unless this is so, the gift can never take effect. The same is true of sub-s (3)." His Honour went on to hold, at 278, that the requirement in s 459G that the application to the court for which it provides be made only within 21 days after service of the demand should not be treated as supplemented or qualified by the operation of s 1322(4), which confers on the court a power to make orders extending the period for doing an act. The learned Master reached the conclusion that s 459G(3)(b) of the Corporations Law required the service on the person who served the statutory demand of a copy of the supporting affidavit itself, and that the requirement did not extend to the service of a copy of the annexures to the affidavit. He therefore held that the application under s 459G was properly on foot. The appellant sought leave to appeal against the decision of the learned Master on the following grounds:"1.The learned Master erred in fact and law in not finding that the respondent (applicant) failed to serve 4 pages of the annexures to the affidavit of Mr E L Bolto within the 21 day period required by s 459G(3) of the Corporations Law.2.The learned Master erred in law in not holding that an annexure to an affidavit is incorporated in and part of the affidavit, and not a separate document.3.The learned Master further erred in law in not holding that an affidavit and all annexures must be filed and served within 21 days to meet the requirements of a valid application under s 459G of the Corporations Law."