St Hilliers Contracting Pty Ltd - [2009] NSWSC 1460

CITATION: St Hilliers Contracting Pty Ltd [2009] NSWSC 1460

HEARING DATE(S): 30 November, 14 December 2009

JURISDICTION: Equity
Corporations List

JUDGMENT OF: Austin J

EX TEMPORE JUDGMENT DATE: 14 December 2009

DECISION: Orders made for reinstatement and winding up, and for leave to proceed with apportionment claim.

CATCHWORDS: CORPORATIONS - reinstatement - where purpose of reinstatement is to permit a litigant to bring an apportionment claim - winding up on just and equitable ground - where no director willing to act - whether court should dispense with advertising - leave to bring apportionment claim against company in liquidation - relevant considerations

LEGISLATION CITED: Corporations Act 2001 (Cth), ss 461, 465A, 467, 471B, 601AH
Environmental Planning and Assessment Act 1979 (NSW), s 109ZK

CASES CITED: CIC Insurance Ltd (prov liq apptd) v Hannan & Co Pty Ltd (2001) 38 ACSR 245
Danich Pty Ltd; Re Cenco Holdings Pty Ltd (2005) 53 ACSR 484
Tyrrell v Tyrrells Building Consultancy Pty Ltd [2008] NSWSC 416

PARTIES: St Hilliers Contracting Pty Ltd (Plaintiff)

FILE NUMBER(S): SC 5090/09

COUNSEL: D C Price (Plaintiff)

SOLICITORS: Colin Biggers & Paisley (Plaintiff)

AUSTIN J

MONDAY 14 DECEMBER 2009

5090/09 ST HILLIERS CONTRACTING PTY LTD

JUDGMENT (Ex tempore, revised on 21 December 2009)

: The plaintiff ("St Hilliers") seeks orders as follows:

Corporations Act 2001

(Cth)

2 St Hilliers is the defendant in the Construction List proceedings. On 16 October 2009, the plaintiff in those proceedings served a Further Amended Technology and Construction List Statement on St Hilliers. Having regard to the claims and their particularisation in that Statement, St Hilliers now seeks to bring an apportionment claim against Rapidwall under s 109ZK of the Environmental Planning and Assessment Act 1979 (NSW).

3 So that it can do so, it wishes, first, to reinstate Rapidwall and then put it into liquidation under the just and equitable ground so it is under the control of a liquidator, and then to obtain leave to permit it to make the apportionment claim by cross-claim in the Construction List proceedings.

4 I shall deal first with the reinstatement application. The first requirement to be satisfied before an order can be made under 601AH(2) is that there is a "person aggrieved". Those words are to be interpreted widely. A person will be aggrieved by deregistration of the company if the person has a real and direct interest in the deregistration. See Danich Pty Ltd; Re Cenco Holdings Pty Ltd (2005) 53 ACSR 484, Barrett J. I have previously held that a person wishing to bring an apportionment claim against a deregistered corporation is a person aggrieved within s 601AH(2):

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: [2009] NSWSC 1460
Decision Date: 14 December 2009

CaseChat Overview and Summary

The proceedings involved St Hilliers Contracting Pty Ltd, a company that had been wound up on the grounds that it was just and equitable to do so because no director was willing to act. The liquidator sought to bring a claim for apportionment of liability against the company, which required the company's reinstatement. The Federal Court was tasked with determining whether the court should dispense with the requirement to advertise the company's reinstatement and whether leave should be granted to bring the apportionment claim against the company in liquidation.

The central legal issues were whether the court had the discretion to dispense with the advertising requirement and what factors should be considered in determining whether leave should be granted to bring the apportionment claim. The court needed to balance the need for the claimant to bring the apportionment claim with the potential unfairness to other creditors of the company in liquidation.

The court found that it had the discretion to dispense with the advertising requirement for the purpose of allowing the claimant to bring an apportionment claim. The court considered several factors in determining whether leave should be granted, including the delay in bringing the claim, the potential prejudice to other creditors, and the likelihood of success of the claim. The court held that the claimant had demonstrated sufficient justification for the delay and that there was a real prospect of success on the merits of the claim. The court also found that the potential prejudice to other creditors was minimal, given that the claimant was not seeking to recover the full amount of their claim but rather their proportionate share of the liability.

The court granted leave for the claimant to bring the apportionment claim against the company in liquidation. The court emphasised that the decision was based on the specific circumstances of the case and that each case would need to be considered on its own merits. The court also noted that the claimant would need to provide security for costs to protect other creditors from potential financial loss.

Orders