Switz Pty Ltd v Glowbind Pty Ltd

Case [2000] NSWCA 37
Reported Decision: 48 NSWLR 661
155 FLR 282
(2000) 33 ACSR 723
(2001) 19 ACLC 532

New South Wales


Court of Appeal

CITATION: SWITZ PTY LTD v GLOWBIND PTY LTD GLOWBIND PTY LTD v SWITZ PTY LTD [2000] NSWCA 37 revised - 15/03/2000
FILE NUMBER(S): CA 40115/00; 40117/00
HEARING DATE(S): 08/03/00
JUDGMENT DATE:
10 March 2000

PARTIES :
Switz Pty Ltd
Glowbind Pty Ltd
JUDGMENT OF: Spigelman CJ at 1; Handley JA at 78; Giles JA at 79
LOWER COURT JURISDICTION : Supreme Court - Equity Division
LOWER COURT
FILE NUMBER(S) : 		3407/99
LOWER COURT
JUDICIAL OFFICER :		 Hodgson CJ in Eq; Austin J
COUNSEL: B A J Coles QC / J K Chippindall (Switz)
J B Simpkins (Glowbind)
SOLICITORS: Clayton Utz (Switz)
Price Waterhouse Coopers (Glowbind)
CATCHWORDS: CORPORATIONS LAW - winding up in insolvency - opposition to winding up - leave to oppose on certain grounds "material to proving the company is solvent" Corporations Law s459S - CORPORATIONS LAW - period in which application to wind up in insolvency must be determined - extension of period - validity of "condition" Corporations Law s459R(4)
LEGISLATION CITED: Corporations Law
Corporate Law Reform Act 1992 (Cth)
CASES CITED:
 ABB Power Plans Limited v Electricity Commission (NSW) 35 NSWLR 596
Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1931-32) 47 CLR 1
Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106
Bayview Holdings Pty Ltd (In Liq) v Zan Holdings Pty Ltd (Supreme Court of
Western Australia, 19 October 1998, unreported)
BHP Steel (JLA) Pty Ltd v Eagle Steel Holdings Pty Ltd [1999] WASC 187
Chief Commissioner of Stamp Duties v Paliflex Pty Ltd (1999) 17 ACLC 467
David Grant & Co Pty Ltd (Receiver appointed) v Westpac Banking Corporation (1994-95) 184 CLR 265
John v Federal Commissioner of Taxation (1989) 166 CLR 417
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
PMT & Partners (in Liq) v Australian National Parks & Wildlife Service (1995) 184 CLR 301
R v Wallis (1949) 78 CLR 529
Re J & E Holdings Pty Ltd (1995) 36 NSWLR 541
Saraswati v R (1991) 172 CLR 1
Texel Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 298
Zan Holdings Pty Ltd v Bayview Holdings Pty Ltd (1997) 15 ACLC 1238
DECISION: Proceedings CA 40117 of 2000; 1 Extend time to apply and grant leave to appeal; 2 Appeal dismissed with costs; Proceedings CA 40115 of 2000; 1 Grant leave to appeal; 2 Appeal allowed with costs; 3 Vary the order of Hodgson CJ in Eq by deleting the condition



      THE SUPREME COURT
      OF NEW SOUTH WALES
      COURT OF APPEAL
      CA 40115/00
      CA 40117/00

                              SPIGELMAN CJ
                              HANDLEY JA
                              GILES JA

                              Friday 10 March 2000
      SWITZ PTY LTD v GLOWBIND PTY LTD (CA40115/00)
      GLOWBIND PTY LTD v SWITZ PTY LTD (CA 40117/00)
      JUDGMENT

1    SPIGELMAN CJ: Switz Pty Limited (“the Plaintiff”) seeks, in accordance with Pt 5.4 of the Corporations Law (the…

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Details
AGLC
Switz Pty Ltd v Glowbind Pty Ltd [2000] NSWCA 37
Case
[2000] NSWCA 37
Decision Date

CaseChat Overview and Summary

Switz Pty Ltd sought to wind up Glowbind Pty Ltd in insolvency. Glowbind sought leave to oppose the winding up application on grounds it contended were material to proving its solvency, pursuant to s 459S of the Corporations Law. Glowbind also sought an extension of the time within which its application to wind up Switz Pty Ltd in insolvency must be determined, pursuant to s 459R(4) of the Corporations Law. The proceedings were heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the grounds proposed by Glowbind for opposing the winding up application were indeed material to proving its solvency, and whether the condition imposed by the primary judge on the extension of time for determining the winding up application was valid.

The Court of Appeal held that the grounds proposed by Glowbind were not material to proving its solvency, and therefore leave to oppose the winding up application should not have been granted. Regarding the extension of time, the Court found that s 459R(4) did not permit the imposition of a condition on the grant of an extension. Consequently, the appeal by Switz Pty Ltd was dismissed, and the appeal by Glowbind Pty Ltd was allowed, with the condition imposed by the primary judge being deleted.

Orders

Orders of the court

Proceedings CA 40117 of 2000; 1 Extend time to apply and grant leave to appeal; 2 Appeal dismissed with costs; Proceedings CA 40115 of 2000; 1 Grant leave to appeal; 2 Appeal allowed with costs; 3 Vary the order of Hodgson CJ in Eq by deleting the condition

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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