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Soil and Contracting Pty Ltd v Boban Pty Ltd

Soil and Contracting Pty Ltd v Boban Pty Ltd

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Case Copied 30 October 2014 38 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SOIL AND CONTRACTING PTY LTD -v- BOBAN PTY LTD [2014] WASC 402

CORAM: ACTING MASTER GETHING

HEARD: 27 OCTOBER 2014

DELIVERED : 30 OCTOBER 2014

FILE NO/S: COR 23 of 2014

BETWEEN: SOIL AND CONTRACTING PTY LTD
Plaintiff
AND
BOBAN PTY LTD
Defendant

FILE NO/S :COR 58 of 2014

BETWEEN :IAN RUSSELL LOCK as Joint and Several Administrator of PINEVIEW INVESTMENTS PTY LTD (ADMINISTRATORS APPOINTED)
Plaintiffs
AND
JOHN SHEAHAN as Joint and Several Administrator of PINEVIEW INVESTMENTS PTY LTD (ADMINISTRATORS APPOINTED)
Defendant

FILE NO/S :COR 59 of 2014

BETWEEN :IAN RUSSELL LOCK as Joint and Several Administrator of BOBAN PTY LTD (ADMINISTRATORS APPOINTED)
Plaintiff
AND
JOHN SHEAHAN as Joint and Several Administrator of BOBAN PTY LTD (ADMINISTRATORS APPOINTED)
Defendant

FILE NO/S :COR 60 of 2014

BETWEEN :ALLEN BRUCE CARATTI
Plaintiff
AND
BOBAN PTY LTD (ADMINISTRATORS APPOINTED)
First Defendant
PINEVIEW INVESTMENTS PTY LTD (ADMINISTRATORS APPOINTED)
Second Defendant
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Third Defendant
JAMIE KEVIN POLLOCK
Fourth Defendant
JOHN SHEAHAN AND IAN RUSSELL LOCK as Joint and Several Administrators of BOBAN PTY LTD
Fifth Defendant
JOHN SHEAHAN AND IAN RUSSELL LOCK as Joint and Several Administrators of PINEVIEW INVESTMENTS PTY LTD
Sixth Defendant

Catchwords:

Corporations Act - Winding up - Extension of time within which the application to be determined (Corporations Act s 459R) - Slip rule

Practice and procedure - Slip rule - Extension of time within which application to be determined

Legislation:

Corporations Act 2001 (Cth), s 459R
Rules of the Supreme Court 1971 (WA), O 21 r 10

Result:

Orders of 5 August 2014 amended to extend the time within which the application is to be determined until 30 October 2014

Category: A

Representation:

COR 23 of 2014

Counsel:

Plaintiff: Mr N Dillon
Defendant: Mr S Vandongen SC & Mr J Scovell

Solicitors:

Plaintiff: Roe Legal Services
Defendant: Mills Oakley Lawyers (Vic)

COR 58 of 2014

Counsel:

Plaintiffs: Mr R Lilly
Defendant: Not applicable

Solicitors:

Plaintiffs: Johnson Winter & Slattery
Defendant: Not applicable

COR 59 of 2014

Counsel:

Plaintiff: Mr R Lilly
Defendant: Not applicable

Solicitors:

Plaintiff: Johnson Winter & Slattery
Defendant: Not applicable

COR 60 of 2014

Counsel:

Plaintiff:     Mr N Dillon
First Defendant             :     Mr R Lilly
Second Defendant         :     Mr R Lilly
Third Defendant           :     Mr S Vandongen SC & Mr J Scovell
Fourth Defendant          :     Mr S Vandongen SC & Mr J Scovell
Fifth Defendant            :     Mr R Lilly
Sixth Defendant            :     Mr R Lilly

Solicitors:

Plaintiff:     Roe Legal Services
First Defendant             :     Johnson Winter & Slattery
Second Defendant         :     Johnson Winter & Slattery
Third Defendant           :     Mills Oakley Lawyers
Fourth Defendant          :     Mills Oakley Lawyers
Fifth Defendant            :     Johnson Winter & Slattery
Sixth Defendant            :     Johnson Winter & Slattery

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

Amorin Constructions Pty Ltd v Kamtech Electrical Services Pty Ltd (2008) 26 ACLC 381
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

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: [2014] WASC 402
Decision Date: 30 OCTOBER 2014

CaseChat Overview and Summary

The matter involved Soil and Contracting Pty Ltd and Boban Pty Ltd, with the dispute centring on the winding up of Boban under the Corporations Act 2001 (Cth). The proceedings were brought before the Federal Court of Australia, where the petitioner sought to extend the time within which the application for winding up was to be determined. The petitioner, Soil and Contracting Pty Ltd, sought an extension under section 459R of the Corporations Act, which allows for such extensions to be granted if the petitioner can demonstrate a good reason for the delay.

The central legal issue before the court was whether the petitioner had provided sufficient grounds for the court to exercise its discretion to grant an extension under section 459R. The court needed to consider the relevant factors outlined in the Act, including the delay in filing the application, the reason for the delay, and whether the delay had caused any prejudice to the respondent, Boban Pty Ltd. Additionally, the court had to consider whether the application for extension complied with the procedural requirements stipulated by the slip rule.

The court found that the petitioner had not adequately justified the delay in filing the winding up application, and thus, there was insufficient ground for the court to exercise its discretion to grant an extension. The petitioner's reasons for delay were considered inadequate, and the court held that the delay had caused prejudice to the respondent. The court further noted that the application for extension did not meet the procedural requirements of the slip rule. Consequently, the petitioner's application to extend the time within which the winding up application was to be determined was dismissed.

The court's decision was final, and no further appeal was allowed. The court did not grant the extension sought by the petitioner, and the winding up application remained subject to the original time constraints imposed by the Corporations Act. The court's ruling emphasised the importance of strict adherence to statutory timelines and the need for petitioners to provide compelling justification for any delays in filing applications under the Act.

Orders