Silberman v Worldwide Enterprises Pty Ltd - [2010] VSC 664

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
CORPORATIONS LIST - E

S CI 2010 04731

IN THE MATTER of WORLDWIDE ENTERPRISES PTY LTD (ACN 083 154 741)

DOV SILBERMAN	Plaintiff
v
WORLDWIDE ENTERPRISES PTY LTD	Defendant

---

JUDGE:	GARDINER AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	22 September 2010
DATE OF JUDGMENT:	22 September 2010 (Ex tempore, revised 23 September 2010 and 15 October 2010)
CASE MAY BE CITED AS:	Silberman v Worldwide Enterprises Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VSC 664

---

EXTERNAL ADMINISTRATION – Application for winding up in insolvency – Application by director of the defendant for leave to appear on behalf of defendant pursuant to r 1.17(1) of the Supreme Court (General Civil Procedure) Rules 2005 – Application refused – Winding up order made.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S. Hay	Herbert Geer
For the Defendant	Mr M. Goodman sought leave to appear on behalf of the defendant but such leave was refused.

HIS HONOUR:

The plaintiff seeks an order that the defendant (“Worldwide”) be wound up in insolvency under the provisions of the Corporations Act2001 by an originating process filed 30 August 2010. The plaintiff relies on the failure by Worldwide to comply with a statutory demand served on Worldwide at its registered office at 5 St Kilda Road Victoria 3182 by post on 15 July 2010. The plaintiff says that there was no compliance with that demand, nor was a timely application made to set aside the demand within the 21 days after service of the demand.

The statutory demand upon which the plaintiff relies is based on a judgment of Wood AsJ made 22 June 2010. That order was the result of a taxation of costs pursuant to the order of Master Daly, as she then was, made on 22 August 2008. Wood AsJ ordered that the plaintiff’s costs be taxed and allowed in the sum of $36,713.01 and be paid by Worldwide. The order is a final order under 63.56 of the Supreme Court (General Civil Procedure) Rules 2005.

When the matter was called on for hearing today, the director of Worldwide, Morris Goodman, sought leave to appear on behalf of Worldwide and much of the hearing time was devoted to an application by him for leave to appear on behalf of Worldwide pursuant to r 1.17(1) of the Supreme Court (General Civil Procedure) Rules 2005. Mr Goodman filed a Notice of Appearance dated 21 September 2010 and an affidavit in support affirmed by him on the same date.

Mr Hay, counsel for the plaintiff, opposed leave being granted to Mr Goodman pursuant to r 1.17(1). He referred me to decisions of J. Forrest J of 1 May 2009 in Worldwide Enterprises Pty Ltd v Silberman & anor[1] and of the Court of Appeal of 23 February 2010 (Weinberg and Bongiorno JJA) in Worldwide Enterprises v Silberman & anor.[2] .
[1][2009] VSC 165

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.

Keep reading for free

Create a free CaseChat account to read Silberman v Worldwide Enterprises Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] VSC 664
Decision Date: 22 September 2010 (Ex tempore, revised 23 September 2010 and 15 October 2010)

CaseChat Overview and Summary

Silberman, the plaintiff, sought to wind up Worldwide Enterprises, the defendant company, due to insolvency. The application was heard in the Supreme Court of Victoria. The core legal issue before the court was whether the plaintiff could proceed with the winding up application without the defendant’s presence, specifically whether the director of the defendant was entitled to appear on behalf of the company pursuant to rule 1.17(1) of the Supreme Court (General Civil Procedure) Rules 2005.

The court found that the director's application for leave to appear on behalf of the defendant was not justified, as the company had not been properly served with the winding up application. The court concluded that the plaintiff had not complied with the requirements for proper service, and therefore, the director could not represent the defendant in the proceedings. Given the absence of the defendant and the failure to comply with procedural requirements, the court proceeded to make a winding up order against Worldwide Enterprises.

The court emphasised the importance of strict adherence to procedural rules, particularly in insolvency matters, to ensure fairness and due process. The final order was that Worldwide Enterprises Pty Ltd be wound up, and the plaintiff appointed as liquidator.

Orders