JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SINGH -v- SUN BRED POWER PTY LTD (IN LIQUIDATION) [2025] WASC 283
CORAM: MUSIKANTH J
HEARD: 17 FEBRUARY 2025
FINAL AFFIDAVIT
FILED: 1 JULY 2025
DELIVERED : 21 JULY 2025
FILE NO/S: CIV 1675 of 2022
BETWEEN: DILAWAR SINGH
Plaintiff
AND
SUN BRED POWER PTY LTD (ACN 604 987 715) (IN LIQUIDATION)
Defendant
Catchwords:
CORPORATIONS - Company in liquidation - Members' voluntary winding up - Application by liquidators for stay of proceedings - Where relief sought under s 90-15 of the Insolvency Practice Schedule
PRACTICE AND PROCEDURE - Stay of proceedings - Abuse of process - Inherent jurisdiction - Whether cause of action has any prospects of resulting in relief being granted - Turns on own facts
Legislation:
Corporations Act 2001 (Cth)
Supreme Court Act 1935 (WA)
Result:
Permanent stay granted
Representation:
Counsel:
| Plaintiff | : | In person |
| Defendant | : | Mr J L Hurley |
Solicitors:
| Plaintiff | : | In person |
| Defendant | : | Jackson McDonald |
Case(s) referred to in decision(s):
Acton Engineering Pty Ltd v Campbell and Others [1991] FCA 469; (1991) 31 FCR 1 (1991) 103 ALR 437
AonRisk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Armstrong v McIntosh [No 2] [2019] WASC 379
Australian Securities and Investments Commission v Jones [2023] WASCA 130
Awada v Linknarf Ltd (in liq) [2002] NSWSC 873; (2002) 55 NSWLR 745; (2002) 20 ACLC 1669
Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256
Brocx v Hughes [2010] WASCA 57
Catto v Hampton Australia Ltd (in liq) (1998) 12 ACLC 1688; (1998) 29 ACSR 225
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334
Commissioner of Taxation v Esso Australia Resources Pty Ltd [2024] FCAFC 151; (2024) 306 FCR 586
Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
Frigger v Mervyn Jonathan Kitay as liquidator of Computer Accounting & Tax Pty Ltd [2022] WASC 347
GDK Projects Pty Ltd, Re Umberto Pty Ltd (in liq) v Umberto Pty Ltd (in liq) [2018] FCA 541
Hertz v Industrial Relations Commission of NSW [2006] NSWCA 16
In the matter of the Pindan Group [No 7] [2024] WASC 371
Kimberley Diamonds Ltd v Arnautovic (2017) 252 FCR 244; [2017] FCAFC 91; (2006) 154 IR 265
Latimer v Cutwood Panels Pty Ltd [2012] WASC 408
Law Society of New South Wales v Bruce (1996) 40 NSWLR 77
Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456
Moubarak by his tutor Coorey v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218
One T Development Pty Ltd v Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd [2023] NSWCA 120
Rowe v Stoltze [2013] WASCA 92
Shaw v The Official Trustee in Bankruptcy of the Australian Financial Security Authority (No 3) [2021] FCA 1569
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No…
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- Case
- [2025] WASC 283
- Decision Date
CaseChat Overview and Summary
The court examined whether Dr Singh's claims had any prospects of resulting in relief being granted, focusing on the Loan Claim and the Return of Capital Claim. The Liquidators conceded that an agreement was in place and that Dr Singh was owed $160,000 as the initial loan and an additional $160,000 contingent on the successful completion of the Solar Farm project. However, the court noted that Dr Singh had significantly reduced his claim from $8,498,391 to $416,205.70, which now only included the Loan Claim and the Return of Capital Claim. The court had to decide whether Dr Singh's claims had any reasonable prospects of success.
The court held that Dr Singh's claims did not have a reasonable prospect of success, primarily due to the absence of evidence supporting the terms of the alleged verbal agreement, particularly the conditions for the additional payments contingent on the successful completion of the Solar Farm project. The court also noted that Dr Singh had abandoned other claims, such as the Unpaid Salary Claim and the Intellectual Property Claim. Consequently, the court granted the liquidators' application for a stay of the proceedings, finding that they were an abuse of process.
The court ordered that the proceedings be stayed until further order, effectively preventing Dr Singh from pursuing his claims against Sun Bred Power Pty Ltd in liquidation. The liquidators were also granted leave to apply for costs.
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
Immediately above the table, in the July 2023 email, the following words appear:6. Details of the unsecured creditors (yet to be paid) of $545,000 as reported in Form 520 Declaration of SolvencyPlease refer to the table below and note that you are the remaining creditor of the Company as at the date of appointment of Liquidators. On Dr Singh's revised calculations, the total due to him as at 17 May 2025 was $416,205.70.[41][41] Plaintiff's supplementary submissions filed 17 March 2025, page 3. Evidently this total is, on Dr Singh's reckoning, comprised of the sum of the amounts in paragraphs 56(a) to (c) above plus interest at 8%.[42][42] Plaintiff's supplementary submissions filed 17 March 2025, page 3. As will be observed, this a significantly lower amount than the $8,498,391 initially sought by Dr Singh.[43] [43] Cf. the total of the amounts sought in the Writ and Amended Statement of Claim filed 12 January 2023, prayer 1. I infer, based on the materials provided by Dr Singh that the amounts recorded in paragraphs 56(a) and (b) above reflect the total now claimed by Dr Singh for his Loan Claim. It is not presently clear how the amount of $42,000 recorded in paragraph 56(c) above (Return of Capital Claim) is calculated. Since mention is no longer made by Dr Singh of either the Unpaid Salary Claim or the Intellectual Property Claim, I will ignore these (evidently now abandoned) claims for the purposes of the analysis which follows below. Dr Singh's Loan Claim is underpinned by an alleged verbal agreement concluded between himself and Ray Wills, director of Sun Bred. The verbal agreement is documented in the 'minutes of the board meeting of directors' of Sun Bred dated 7 July 2016 (board minutes). The board minutes record the following:[44]The Board accepted [Dr Singh's] offer in relation to the Funding of the Development Fund of up to $100,000 and is in addition to the $17,000 advance made for the deposit of the Land. The following conditions will apply.1.A return of 50% will be paid on the amount drawn from the $100,000 extended by [Dr Singh] and this would be dependent on the successful completion of the Solar Farm project on the Land in Cunderdin. 2.An additional 50% bonus would be paid after one year and would be dependent on the successful completion of the Solar Farm project on the Land in Cunderdin.[44] Nipps affidavit, Annexure 'JJN-7'. The Liquidators accept, based on what is recorded in the minutes, that an agreement was concluded between Dr Singh and Sun Bred. They also accept, despite the reference to $100,000 in the board minutes, that $160,000 was in fact lent by Dr Singh and is now owed by Sun Bred. The Liquidators also appear to have accepted, at the hearing, that under the terms of the agreement Dr Singh was entitled to receive:(a)the $160,000 capital he initially lent to Sun Bred; and(b)two additional 'lots of 50 per cent' on top of his initial capital (I infer $80,000 x 2, totalling $160,000) provided 'successful completion' of the Solar Farm project occurred.[45][45] ts 46, 17 February 2025.