Sutton v Gemstart Pty Ltd
[2012] FMCA 611
•20 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SUTTON v GEMSTART PTY LTD | [2012] FMCA 611 |
| INDUSTRIAL LAW – Respondent company in liquidation – need to seek leave of the Court in order to proceed to prosecute an action against such a company – leave not sought – application cannot be successfully prosecuted. |
| Federal Magistrates Court Rules 2001 (Cth) |
| Applicant: | STEPHEN JOHN SUTTON |
| Respondent: | GEMSTART PTY LTD TRADING AS RELIABLE SECURITY AUSTRALIA |
| File Number: | BRG 965 of 2011 |
| Judgment of: | Burnett FM |
| Hearing date: | 20 June 2012 |
| Date of Last Submission: | 20 June 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 20 June 2012 |
REPRESENTATION
| The Applicant appeared on his own behalf |
| There was no appearance by or on behalf of the Respondent |
ORDERS
That the application filed 2 November 2011 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 965 of 2011
| STEPHEN JOHN SUTTON |
Applicant
And
| GEMSTART PTY LTD TRADING AS RELIABLE SECURITY AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
This is an application brought by the applicant against the respondent, Gemstart Proprietary Limited trading as Reliable Security Australia, seeking to recover a sum of $9,887.50 for unpaid wages. The applicant, Mr Sutton, appears for himself. Gemstart Proprietary Limited initially filed an appearance, but in the meantime has gone into liquidation. I note from a report prepared by Pearce and Heers Insolvency Accountants, report to creditors, that that event seems to have occurred sometime on or before 26 April 2012, which is the date of the report to creditors. It can be seen from the report to creditors that the company was plainly insolvent. It had been trading at a loss for some years leading up to the point of liquidation and there was a significant net asset deficiency.
Mr Sutton is not aware that in respect of companies in liquidation, it is necessary to obtain the Court’s leave in order to proceed to prosecute an action against such a company. In this instance he has not obtained the Court’s leave and, candidly, there is probably little utility in him obtaining the Court’s leave, because it is unlikely, having regard to the overall financial state of the company, that he would justify an order which would have the effect of affording him some priority over other creditors. But in any event, it seems, given that his claim is in respect of unpaid wages, he would be a priority unsecured creditor in any event. He tells me that his claim for wages has been accepted by the liquidator.
It follows that in these circumstances, given that the applicant does not have leave to proceed against the company in liquidation, the application cannot succeed. The Federal Magistrates Court Rules 2001 (Cth) provide that the Court may order that a proceeding be dismissed in any claim for relief in the proceeding if the Court is satisfied that the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting under the proceeding or claim. In this case, given that he does not have leave to proceed against the company which is now in liquidation, it is plain on its face that the application cannot be successfully prosecuted. It follows that the application ought be dismissed.
I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 11 July 2012
0
0
1