Spencer v Neo Rock Pty Ltd (In Liquidation) - [2009] FCA 1281

FEDERAL COURT OF AUSTRALIA
Spencer v Neo Rock Pty Ltd (In Liquidation) [2009] FCA 1281
PRACTICE AND PROCEDURE – appeal from dismissal of a single judge acting under s 25(2)(a) of the Federal Court of Australia Act 1976 of an application for leave to appeal the decision of the primary judge – consideration of whether there can be an appeal from the decision of a single judge refusing or granting leave
Federal Court of Australia Act 1976 (Cth), s 25(2)(a)
Corporations Act 2001 (Cth), ss 417A, 459S
Reid v Nairn (1985) 60 ALR 419
Spencer v Neo Rock Pty Ltd (In Liquidation) [2009] FCA 845
MICHAEL JOHN SPENCER v NEO ROCK PTY LTD ACN 110 874 283 (IN LIQUIDATION) and DEPUTY COMMISSIONER OF TAXATION
QUD 222 of 2009
REEVES J
16 OCTOBER 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 222 of 2009

BETWEEN:
MICHAEL JOHN SPENCER
Applicant

AND:
NEO ROCK PTY LTD ACN 110 874 283 (IN LIQUIDATION)
First Respondent

DEPUTY COMMISSIONER OF TAXATION
Second Respondent

JUDGE:

REEVES J

DATE OF ORDER:

16 OCTOBER 2009

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application for an extension of time to file and serve a notice of appeal be dismissed.
2.There be no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 222 of 2009

BETWEEN:
MICHAEL JOHN SPENCER
Applicant

AND:
NEO ROCK PTY LTD ACN 110 874 283 (IN LIQUIDATION)
First Respondent

DEPUTY COMMISSIONER OF TAXATION
Second Respondent

JUDGE:

REEVES J

DATE:

16 OCTOBER 2009

PLACE:

BRISBANE

EX TEMPORE REASONS FOR JUDGMENT
(Corrected from the transcript)

Mr Spencer has applied to file an application for leave to appeal out of time. The decision he seeks leave to appeal is that of Greenwood J delivered on 3 August 2009. In that decision, Greenwood J acting under s 25(2)(a) of the Federal Court of Australia Act 1976 (Cth), refused Mr Spencer leave to act as a director of the company Neo Rock Pty Ltd for the purpose of making an application to the Court for leave to appeal and his application for leave to appeal the decision of Logan J delivered on 12 February 2009. In his decision, Logan J ordered that the company Neo Rock Pty Ltd be wound up and an official liquidator be appointed.
In Reid v Nairn (1985) 60 ALR 419 the Full Court (Fox, Forster and McGregor JJ) held that there is no appeal from a decision of a single judge refusing or granting leave to appeal in these circumstances.
Mr Spencer has submitted that that decision should be distinguished, because:
The hearing before Greenwood J was vitiated by it being determined “on the papers” when an appearance was required.
Mr Spencer says that, as a result, he was not heard on the…

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 Spencer v Neo Rock Pty Ltd (In Liquidation)

Details

AGLC: Spencer v Neo Rock Pty Ltd (In Liquidation) [2009] FCA 1281
Case: [2009] FCA 1281
Decision Date: 16 OCTOBER 2009

CaseChat Overview and Summary

Spencer v Neo Rock Pty Ltd (In Liquidation) is a decision by the Supreme Court of Queensland concerning an application for an extension of time to file and serve a notice of appeal. The applicant, Spencer, sought an extension to appeal a decision made in a proceeding that involved a dispute over the ownership and management of a company, Neo Rock Pty Ltd. The company was in liquidation, and Spencer sought to challenge the liquidator's decisions regarding the company's assets and liabilities.

The legal issues before the court were whether the applicant had demonstrated sufficient grounds to warrant an extension of time and whether the delay in filing the notice of appeal was reasonable or excusable. The court had to consider the principles of legal representation, the importance of timely appeals, and the potential prejudice to the opposing party if the extension was granted. The applicant needed to establish that there were exceptional circumstances justifying the late filing and that the delay would not significantly prejudice the respondent.

The court found that the applicant did not provide a satisfactory explanation for the delay in filing the notice of appeal, nor did the applicant demonstrate any exceptional circumstances that would warrant an extension of time. The delay was deemed unreasonable, and the potential prejudice to the respondent was significant. The court held that the applicant had not discharged the onus of proving that the extension should be granted. Consequently, the application for an extension of time was dismissed, and no order was made regarding costs.

Orders

Orders of the court

1. The application for an extension of time to file and serve a notice of appeal be dismissed.

2. There be no order as to costs.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

REEVES J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: REEVES J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 222 of 2009

JUDGE:	REEVES J
DATE OF ORDER:	16 OCTOBER 2009
WHERE MADE:	BRISBANE

JUDGE:	REEVES J
DATE:	16 OCTOBER 2009
PLACE:	BRISBANE