Tolcher (as Liquidator of Lloyd Scott Enterprises Pty Ltd (In Liq) v Capital Finance Australia Ltd Summary

FEDERAL COURT OF AUSTRALIA
Tolcher (as Liquidator of Lloyd Scott Enterprises Pty Ltd (In Liq) v Capital Finance Australia Ltd [2005] FCA 1300
PRACTICE AND PROCEDURE – application for leave to appeal dismissed
Federal Court Rules O 52 r 10(2A)(b)
RAYMOND GEORGE TOLCHER (AS LIQUIDATOR OF LLOYD SCOTT ENTERPRISES PTY LTD (IN LIQUIDATION)) AND LLOYD SCOTT ENTERPRISES PTY LTD (IN LIQUIDATION) v CAPITAL FINANCE AUSTRALIA LTD AND CAPITAL CORPORATE FINANCE LTD
N 979 OF 2004
TAMBERLIN J
SYDNEY
23 MARCH 2005

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 979 OF 2004

BETWEEN:

RAYMOND GEORGE TOLCHER (AS LIQUIDATOR OF LLOYD SCOTT ENTERPRISES PTY LTD
(IN LIQUIDATION))
FIRST APPLICANT

LLOYD SCOTT ENTERPRISES PTY LTD
(IN LIQUIDATION) (ACN 002 739 773)
SECOND APPLICANT

AND:

CAPITAL FINANCE AUSTRALIA LTD
(ACN 069 663 136)
FIRST RESPONDENT

CAPITAL CORPORATE FINANCE LTD
(ACN 002 888 048)
SECOND RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

23 MARCH 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The time limited by O 52 r 10 (2A)(b) of the Federal Court Rules for the filing and service of the Notice of Motion be extended up to and including 21 March 2005.
2.Subject to Order 1, the application is otherwise dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 979 OF 2004

BETWEEN:

RAYMOND GEORGE TOLCHER (AS LIQUIDATOR OF LLOYD SCOTT ENTERPRISES PTY LTD
(IN LIQUIDATION))
FIRST APPLICANT

LLOYD SCOTT ENTERPRISES PTY LTD
(IN LIQUIDATION) (ACN 002 739 773)
SECOND APPLICANT

AND:

CAPITAL FINANCE AUSTRALIA LTD
(ACN 069 663 136)
RESPONDENT

CAPITAL CORPORATE FINANCE LTD
(ACN 002 888 048)
SECOND RESPONDENT

JUDGE:

TAMBERLIN J

DATE:

23 MARCH 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is a Notice of Motion seeking leave to appeal from a judgment delivered on 18 February 2005 by myself.
I am not persuaded that grounds have been shown for the granting of leave to appeal. I think that the fragmentation of this proceeding is undesirable and I am not prepared to grant leave.
I make Order 1 of the Notice of Motion, namely, that the time limited by O 52 r 10(2A)(b) of the Federal Court Rules for the filing and service of the Notice of Motion is extended up to and including 21 March 2005, however, I refuse the application for leave to appeal in the present case on the basis that it is preferable that the matter proceed to a hearing.
Accordingly, I make Order 1 of the Notice of Motion and I otherwise dismiss the application with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:
Dated: 15 September 2005

Counsel for the Applicant:

R Harper SC

Solicitor for the Applicant:

Piper Alderman

Counsel for the Respondent:

M Ashhurst

Solicitor for the Respondent:

Kemp Strang

Date of Hearing:

23 March 2005

Date of Judgment:

23 March 2005

Tolcher, as liquidator of Lloyd Scott Enterprises Pty Ltd, brought an application against Capital Finance Australia Ltd in the Federal Court. The liquidator sought an extension of time to file and serve a Notice of Motion. Lloyd Scott Enterprises Pty Ltd had entered liquidation, and the liquidator was seeking to recover certain assets and claims on behalf of the creditors. Capital Finance Australia Ltd opposed the application, arguing that the liquidator had not demonstrated sufficient grounds for an extension of time.

The central legal issue was whether the liquidator had provided adequate justification for the extension of time under O 52 r 10 (2A)(b) of the Federal Court Rules. The court had to assess whether the delay was sufficiently explained and whether it would cause significant prejudice to Capital Finance Australia Ltd if the extension was granted.

The court considered the arguments and evidence presented by both parties. It found that while the liquidator had provided some explanation for the delay, it was not comprehensive enough to warrant an extension of time. The court also noted that Capital Finance Australia Ltd would suffer significant prejudice if the extension was granted, as it would be unable to adequately prepare its defence. Therefore, the court decided to dismiss the application, subject to the condition that the Notice of Motion be filed and served by 21 March 2005. The court also ordered the liquidator to pay costs associated with the application.

Tolcher (as Liquidator of Lloyd Scott Enterprises Pty Ltd (In Liq) v Capital Finance Australia Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 979 OF 2004

BETWEEN:	RAYMOND GEORGE TOLCHER (AS LIQUIDATOR OF LLOYD SCOTT ENTERPRISES PTY LTD (IN LIQUIDATION)) FIRST APPLICANT LLOYD SCOTT ENTERPRISES PTY LTD (IN LIQUIDATION) (ACN 002 739 773) SECOND APPLICANT
AND:	CAPITAL FINANCE AUSTRALIA LTD (ACN 069 663 136) FIRST RESPONDENT CAPITAL CORPORATE FINANCE LTD (ACN 002 888 048) SECOND RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	23 MARCH 2005
WHERE MADE:	SYDNEY

JUDGE:	TAMBERLIN J
DATE:	23 MARCH 2005
PLACE:	SYDNEY

Counsel for the Applicant:	R Harper SC
Solicitor for the Applicant:	Piper Alderman
Counsel for the Respondent:	M Ashhurst
Solicitor for the Respondent:	Kemp Strang
Date of Hearing:	23 March 2005
Date of Judgment:	23 March 2005