SpaCorp Australia Pty Ltd v Myer Stores Ltd (No 2)

[2000] VSC 484

SUPREME COURT OF VICTORIA
COMMERCIAL AND EQUITY DIVISION	Not Restricted

No. 6558 of 2000

SPACORP AUSTRALIA PTY LTD (ACN 081 752 883)	Plaintiff
v
MYER STORES LTD (ACN 004 143 239)	Defendant

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JUDGE:	Warren J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2000
DATE OF JUDGMENT:	16 November 2000
CASE MAY BE CITED AS:	SpaCorp Australia Pty Ltd v Myer Stores Ltd (No. 2)
MEDIUM NEUTRAL CITATION:	[2000] VSC 484

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Corporations Law – ss.459E, 459H and 459J – application to extend time for compliance with a statutory demand – appeal pending.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.D. Elliott with Mr J. Nolan	Lewenberg & Lewenberg
For the Defendant	Mr D. Denton	Phillips Fox

HER HONOUR:

1. In this proceeding I made orders on 9 November 2000 setting aside orders made by the Senior Master. The practical effect of my orders was to reactivate a statutory demand served by the defendant on the plaintiff pursuant to s.459E of the Corporations Law.  Hence, pursuant to s.459F(2) the plaintiff had seven days from the date of my orders to meet the demand.  The seven day period expires this day.

1. As a consequence an urgent oral application has been brought by the plaintiff seeking an extension of time for compliance with the demand.  On 14 November 2000 the plaintiff lodged a Notice of Appeal against my orders made 9 November 2000.  The plaintiff seeks an extension pursuant to s.459F(2)(a)(i) of the Law for compliance with the statutory demand until 21 days after the determination of the appeal.  The plaintiff proposes applying to the Court of Appeal for an expeditious hearing.

1. The defendant opposed the application before me and alleged prejudice to the extent that if the extension is granted it will be precluded from executing its statutory rights until the appeal is determined.  It is asserted this may involve a delay of 12 even 18 months.

1. I proposed to the plaintiff that an alternative course might be for me to grant a short stay pending a stay application to the Court of Appeal.  The plaintiff declined such course.

1. I am faced with an application to extend time in circumstances where I have found the statutory demand ought stand.  The plaintiff says if I do not grant the extension the appeal will be rendered nugatory.  However, if I grant the extension as sought I would necessarily grant an extension for a period as yet undetermined.  I consider that to be inappropriate. 

1. In light of the authorities[1] I am satisfied that I have jurisdiction to grant the extension.  However, in all the circumstances of this matter, I consider the extension ought be granted for a short period only such as to enable the plaintiff to make any applications it may wish to pursue before the Court of Appeal.  I will make orders accordingly.

   [1]Vista Commercial Construction Pty Ltd v Deputy Commissioner of Taxation (1997) 25 ACS 287; 289-294; Equuscorp Pty Ltd v Perpetual Trustees WA Ltd (1997) 25 ACSR 675, 701-2; David Grant & Co Pty Ltd v Westpac Banking Corporation [1994-95] 184 CLR 265; Graywinter Management Pty Ltd v Deputy Commissioner of Taxation (1996) 22 ACSR 636.