Snell v Glatis (No 4) - [2021] NSWCA 42

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Snell v Glatis (No 4) [2021] NSWCA 42
Hearing dates: 15, 18 March 2021
Decision date: 18 March 2021
Before: Leeming JA
Decision:
(1) Stand over the Notice of Motion filed 12 March 2021 part heard to Thursday 25 March 2021.
(2) Vary the existing stay of orders 4-24 made on 4 November 2020 so that it expires at 2pm on Friday 26 March 2021.
(3) Direct the parties to provide any consent orders for the finalisation of the proceedings and the Notice of Motion to Leeming JA’s Associate by 4pm on Wednesday 24 March 2021.
(4) Note that in the event that consent orders are provided in accordance with order 3 above, those orders will be made and the listing on Thursday 25 March 2021 will be vacated.

Catchwords:
PRACTICE – variation of orders by consent – effect of application to delay winding up of companies – need to provide proper basis

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56

Cases Cited:
In the matter of Scientific Management Associates Pty Ltd [2019] NSWSC 1643
Snell v Glatis [2020] NSWCA 78
Snell v Glatis(No 2) [2020] NSWCA 166
Snell v Glatis(No 3) [2020] NSWCA 267

Category: Procedural rulings
Parties: Margaret Edith Snell as executrix of the deceased estate of Keith Eddy Snell (Appellant, Respondent on the Notice of Motion)
Christopher Glatis (First Respondent, Applicant on the Notice of Motion)
Glatis Family Limited Partnership (Second Respondent, Applicant on the Notice of Motion)
Owen Culley (Third Respondent, Respondent on the Notice of Motion)
Representation:
Counsel:
A Fernon (Appellant)
M Collins (First and Second Respondents)
A Flower (Third Respondent)
Solicitors:
Chamberlains Law Firm (Appellant)
Dentons (First and Second Respondents)
FCG Legal Pty Ltd (Third Respondent)

File Number(s): 2019/401280
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division – Corporations List

Citation:

[2019] NSWSC 1643

Date of Decision:

27 November 2019

Before:

Rees J

File Number(s):

2016/183457

EX TEMPORE Judgment

HIS HONOUR: Before me by notice of motion filed on 12 March 2021 is an application to vary orders of the Court made on 4 November 2020 so as to delay their coming into effect until 6 April 2021. Most recently, that has been amended so as to reduce the extension of time sought until 2pm Friday 26 March 2021. This is in substance the third application to vary the orders to provide additional time within which the parties can settle their dispute.
The background, shortly summarised, involves uncontested findings of many years of oppressive conduct in companies co‑owned by interests associated with the Snell and Glatis families (the third respondent, Mr Culley, also played a role but a relatively small one). Following an eight day trial in 2019, a judge sitting in the Corporations List of the Equity Division delivered a lengthy judgment making numerous findings of oppression and ordering a compulsive buyout by the companies’ controller,…

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 Snell v Glatis (No 4)

Details

AGLC: Snell v Glatis (No 4) [2021] NSWCA 42
Case: [2021] NSWCA 42
Decision Date: 18 March 2021

CaseChat Overview and Summary

In *Snell v Glatis (No 4)*, the Honourable Justice Leeming JA of the Supreme Court of New South Wales considered an application to vary existing orders that had stayed the winding up of companies. The dispute concerned the effect of an application to delay the winding up process and the need for a proper basis to support such an application.

The court was required to determine whether to vary the existing stay of orders, which had been made on 4 November 2020, and to consider the implications of an application to further delay the winding up of the companies. The central legal issue revolved around the conditions under which a court would grant a further stay or variation of winding-up orders, particularly when an application was made to postpone the inevitable.

Justice Leeming JA noted that the parties had previously consented to the stay of orders, but the current application to further delay the winding up required a proper basis. The court indicated a willingness to vary the existing stay to allow for further consideration, but emphasised the need for the parties to provide consent orders for the finalisation of the proceedings. The court's approach was to facilitate a consensual resolution and avoid further contested hearings if possible.

The court ordered that the Notice of Motion filed on 12 March 2021 be stood over to 25 March 2021. The existing stay of orders was varied to expire at 2pm on 26 March 2021. The parties were directed to provide any consent orders for the finalisation of the proceedings and the Notice of Motion to the Associate by 4pm on 24 March 2021, with the understanding that if such orders were provided, they would be made and the listing on 25 March 2021 would be vacated.

Orders

Orders of the court

(1) Stand over the Notice of Motion filed 12 March 2021 part heard to Thursday 25 March 2021.

(2) Vary the existing stay of orders 4-24 made on 4 November 2020 so that it expires at 2pm on Friday 26 March 2021.

(3) Direct the parties to provide any consent orders for the finalisation of the proceedings and the Notice of Motion to Leeming JA’s Associate by 4pm on Wednesday 24 March 2021.

(4) Note that in the event that consent orders are provided in accordance with order 3 above, those orders will be made and the listing on Thursday 25 March 2021 will be vacated.

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

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Medium Neutral Citation:	Snell v Glatis (No 4) [2021] NSWCA 42
Hearing dates:	15, 18 March 2021
Decision date:	18 March 2021
Before:	Leeming JA
Decision:	(1) Stand over the Notice of Motion filed 12 March 2021 part heard to Thursday 25 March 2021. (2) Vary the existing stay of orders 4-24 made on 4 November 2020 so that it expires at 2pm on Friday 26 March 2021. (3) Direct the parties to provide any consent orders for the finalisation of the proceedings and the Notice of Motion to Leeming JA’s Associate by 4pm on Wednesday 24 March 2021. (4) Note that in the event that consent orders are provided in accordance with order 3 above, those orders will be made and the listing on Thursday 25 March 2021 will be vacated.
Catchwords:	PRACTICE – variation of orders by consent – effect of application to delay winding up of companies – need to provide proper basis
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56
Cases Cited:	In the matter of Scientific Management Associates Pty Ltd [2019] NSWSC 1643 Snell v Glatis [2020] NSWCA 78 Snell v Glatis(No 2) [2020] NSWCA 166 Snell v Glatis(No 3) [2020] NSWCA 267
Category:	Procedural rulings
Parties:	Margaret Edith Snell as executrix of the deceased estate of Keith Eddy Snell (Appellant, Respondent on the Notice of Motion) Christopher Glatis (First Respondent, Applicant on the Notice of Motion) Glatis Family Limited Partnership (Second Respondent, Applicant on the Notice of Motion) Owen Culley (Third Respondent, Respondent on the Notice of Motion)
Representation:	Counsel: A Fernon (Appellant) M Collins (First and Second Respondents) A Flower (Third Respondent) Solicitors: Chamberlains Law Firm (Appellant) Dentons (First and Second Respondents) FCG Legal Pty Ltd (Third Respondent)
File Number(s):	2019/401280
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division – Corporations List Citation: [2019] NSWSC 1643 Date of Decision: 27 November 2019 Before: Rees J File Number(s): 2016/183457