Sanders v Probuild Constructions (Aust) Pty Ltd - [2023] WASC 317

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   SANDERS -v- PROBUILD CONSTRUCTIONS (AUST) PTY LTD [2023] WASC 317
CORAM:   ACTING MASTER MCDONALD
HEARD:   15 AUGUST 2023
DELIVERED          :   15 AUGUST 2023
PUBLISHED           :   23 AUGUST 2023
FILE NO/S:   COR 84 of 2023
BETWEEN:   STEPHEN JOHN SANDERS
Plaintiff
AND
PROBUILD CONSTRUCTIONS (AUST) PTY LTD
Defendant

Catchwords:

Practice and procedure - Application for leave to continue an action for damages against a company subject to deed of company arrangement - Whether leave should be granted - Turns on own facts

Legislation:

Corporations Act 2001 (Cth) s 444E(3)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	R Cywicki
Defendant	:	No appearance

Solicitors:

Plaintiff	:	DWL Legal
Defendant	:	No appearance

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

Attard v James Legal Pty Ltd [2010] NSWCA 311; (2010) 80 ACSR 585
Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (subject to deed of company arrangement) [2016] FCA 1246
Corbett v Arrium Creditor Distribution Co Pty Ltd [2017] WASC 357
Galati-Sardo v Career Boss WA Pty Ltd (In Liq) [2021] WASC 278
J F Keir Pty Ltd v Priority Management Systems Pty Ltd (admin apptd) [2007] NSWSC 748
Meehan v Stockmans Australian Café (Holdings ) Pty Ltd (1996) 22 ACSR 123
Mehan v Arrium Ltd (formerly Onesteel Ltd) [2016] NSWSC 1680

ACTING MASTER MCDONALD:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

This is an application by the plaintiff made by originating process pursuant to s 444E of the Corporations Act 2001 (Cth) (the Act) for leave to continue proceedings against a company the subject of a deed of company arrangement. The application is supported by two affidavits of Ms Alison Frances Hagan both sworn on 8 June 2023. These are referred to as the Hagan Affidavit (127 pages) and the Hagan Affidavit (5 pages). For the following reasons it is appropriate that leave be granted.

Factual background

The factual background is taken from the affidavits of Ms Hagan who, among other things, deposes to the following.
By way of writ of summons filed 25 May 2021 in the District Court of Western Australia, the plaintiff commenced proceedings against Probuild Pty Ltd (ACN 003 063 894) (later amended to 'Probuild Constructions (Aust) Pty Ltd') claiming damages for personal injury and loss sustained by him as a result of an incident which occurred on or about 4 July 2018 at workplace premises allegedly occupied and/or controlled by the defendant (the proceedings).
The statement of claim alleges that the plaintiff was employed by Express Interiors Pty Ltd as a fixer. The defendant was incorporated and was the principal building contractor in the construction of a hotel and residential apartments at premises situated at 1 Barrack Street, Perth.
It is alleged the defendant was the occupier of the premises and in control of the workplace within the meaning of s 22 of the Occupational Safety and Health Act 1984 (WA) (OSH Act). It is further alleged…

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 Sanders v Probuild Constructions (Aust) Pty Ltd

Details

AGLC: Sanders v Probuild Constructions (Aust) Pty Ltd [2023] WASC 317
Case: [2023] WASC 317
Decision Date

CaseChat Overview and Summary

The plaintiff, Stephen John Sanders, filed an application in the Supreme Court of Western Australia, seeking leave to continue proceedings against Probuild Constructions (Aust) Pty Ltd, a company subject to a deed of company arrangement, for damages arising from a workplace injury. The defendant had entered voluntary administration before the proceedings were initiated, and subsequently, a deed of company arrangement was lodged. The court was tasked with determining whether leave should be granted under section 444E(3) of the Corporations Act 2001 (Cth) for the plaintiff to continue the action.

The legal issues before the court involved assessing whether the plaintiff's claim had a solid foundation, whether the proceedings had progressed to an advanced stage, whether the plaintiff would suffer significant disadvantage if leave was refused, and whether the defendant's insurers would respond to any claim if the plaintiff prevailed. Additionally, the court had to consider whether the deed administrators would be unreasonably distracted or incur unnecessary legal costs if leave was granted.

The court found that the plaintiff's claim had a solid foundation, as it involved serious allegations of negligence and statutory breaches that warranted further investigation. The proceedings had progressed to a stage where they were ready for mediation, and the plaintiff would suffer significant disadvantage if leave was refused, as his injuries and potential loss of earning capacity were substantial. The defendant's insurer had taken an active role in the proceedings, indicating they would respond to any claim if successful. The court concluded that the deed administrators would not be unreasonably distracted or incur significant legal costs. Thus, the court determined that there were good reasons for allowing the plaintiff to continue the proceedings.

The court granted the plaintiff leave to continue the proceedings against Probuild Constructions (Aust) Pty Ltd, subject to obtaining leave from the court before any enforcement action could be taken. This order ensured that the deed administrators and creditors were protected, and the court could reassess the financial position and insurance coverage at the enforcement stage.

Orders