Timms v Dellaplus Pty Ltd

Case [2008] SASC 17

SUPREME COURT OF SOUTH AUSTRALIA

(Applications Under Various Acts or Rules: Application)

TIMMS v DELLAPLUS PTY LTD

[2008] SASC 17

Judgment of The Honourable Justice Sulan

5 February 2008

CORPORATIONS - WINDING UP - CONDUCT AND INCIDENTS OF WINDING UP - PROCEEDINGS BY OR AGAINST THE COMPANY

Period within which the application for the respondent company to be wound up in insolvency was to be determined expired - application for extension of time - whether application for winding up automatically dismissed pursuant to s 459R(3) of the Corporations Act 2001 (Cth) ('the Act') - whether time may be extended pursuant to s 1322 of the Act - whether time may be extended by application of the slip rule - whether order extending time may be made nunc pro tunc - whether discretion should be exercised to grant extension.

Held: application granted - s 459R excludes the operation of s 1322 of the Act - the slip rule may be applied to ameliorate the effect of s 459R(3) of the Act - order made under the slip rule applies nunc pro tunc - discretion should be exercised to extend time - time extended by six months.

Corporations Act 2001 (Cth) s 459F, s 459G, s 459P, s 459Q, s 459R, s 459S, s 1322(4); Corporations Rules 2003 (Cth) r 1.3; Supreme Court Civil Rules (2006) (SA) r 4, r 242, referred to.
Australian Securities Commission v Marlborough Gold Mines (1993) 177 CLR 485; Davies v Chicago Boot Company Pty Ltd (No 2) (2007) 96 SASR 164; David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; DDB Needham Sydney Pty Ltd v Elyard Corporation Pty Ltd (1995) 131 ALR 213; Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385; Merrill Lynch Equities (Australia) Ltd v Triangle Packing Case Pty Ltd (1999) 17 ACLC 1,522, applied.
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; Donne v Lewis (1805) 11 Ves Jun 601; Earls Croft University Ltd v Brown (2003) 226 LSJS 194; Emanuele v Australian Securities Commission (1996-1997) 188 CLR 114; L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590; Milson v Carter [1893] AC 638; Re Australnet Ltd (1995) 13 ACLC 96; Terry's Motors Ltd v Rinder (No 2) [1948] SASR 303, considered.

TIMMS v DELLAPLUS PTY LTD
[2008] SASC 17

Civil

  1. SULAN J: This is an application by the plaintiff for an extension of time within which his application that the defendant company be wound up in insolvency, pursuant to s 459P of the Corporations Act 2001 (Cth) (‘the Act’), is to be determined. The plaintiff seeks the order extending time to be made nunc pro tunc.

    Background

  2. On 11 January 2007, the plaintiff applied to this Court, pursuant to s 459P of the Act, to have the defendant company wound up. The application…

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AGLC
Timms v Dellaplus Pty Ltd [2008] SASC 17
Case
[2008] SASC 17
Decision Date

CaseChat Overview and Summary

Timms brought an application to wind up Dellaplus Pty Ltd in insolvency. The period within which the application was to be determined expired, and Timms applied for an extension of time. The court had to decide if the application for winding up was automatically dismissed under s 459R(3) of the Corporations Act 2001 (Cth), if time could be extended under s 1322 of the Act, if the slip rule could be applied, and if an order extending time could be made nunc pro tunc. Additionally, the court had to decide if the discretion to grant an extension should be exercised.

The court found that s 459R of the Act excluded the operation of s 1322. However, the slip rule could be applied to ameliorate the effect of s 459R(3). The court held that an order made under the slip rule applied nunc pro tunc, and the discretion should be exercised to extend time. The time was extended by six months, from 26 October 2007. The court concluded that justice would be best served by allowing the proceedings to continue to finality, and the decision on the preliminary point would be reserved to Judge Burley. The court ordered that the period within which the application for winding up in insolvency was to be determined be extended by six months from 26 October 2007, with the order applying nunc pro tunc from 18 September 2007.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view justice in this matter will be best served by allowing the proceedings to continue to finality. The decision on the preliminary point is presently reserved to Judge Burley. Allowing judgment to be handed down on this issue will, in my opinion, lead to the conclusion of the dispute between the parties in the most timely manner possible.Conclusion Pursuant to r 242 of the Rules, I would correct the order of 18 September 2007 so as to order that the period within which this application for winding up in insolvency is to be determined be extended by six months from 26 October 2007, this order to apply nunc pro tunc from 18 September 2007.

Ratio Decidendi

Legal Principle Established

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