TQM Design and Construct Pty Ltd v Golden Plantation Pty Ltd

[2011] NSWSC 438

Supreme Court

New South Wales

Medium Neutral Citation:	TQM Design and Construct Pty Ltd v Golden Plantation Pty Ltd [2011] NSWSC 438
Hearing dates:	12 May 2011
Decision date:	12 May 2011
Jurisdiction:	Equity Division
Before:	Barrett J
Decision:	Application under Corporations Act 2001 (Cth) s 459S refused
Catchwords:	CORPORATIONS - winding up - application for winding up in insolvency - at start of final hearing, defendant seeks leave to file s 459S application - no such application foreshadowed - need for such application to be determined before final hearing - application refused
Legislation Cited:	Corporations Act 2001 (Cth), s 459S
Cases Cited:	Switz Pty Ltd v Glowbind Pty Ltd [2000] NSWCA 37; (2000) 33 ACSR 723
Category:	Procedural and other rulings
Parties:	TQM Design and Construct Pty Limited - Plaintiff Golden Plantation Pty Limited - Defendant
Representation:	Counsel: Ms V Culkoff - Plaintiff Mr M K Condon - Defendant Solicitors: Julie Ann Orsini Plaintiff Gadens Lawyers - Defendant
File Number(s):	2011/00068064

JUDGMENT -

Re leave sought to file interlocutory process (see transcript p 20 )

1. The defendant seeks leave to file in court an interlocutory process advancing an application under s 459S of the Corporations Act 2001 (Cth) for leave to defend the winding up proceedings on the ground that could have been relied on by way of application to set aside the statutory demand which is the annexure to the originating process.

1. The originating process now before me for hearing was filed on 2 March 2011. It was returnable before the Registrar on 13 April 2011. On that day, the Registrar stood it over to the Corporations Judge's list on 18 April 2011. The matter came before me on 18 April 2011. There were appearances for both parties. The defendant was given leave to file in court a photocopy of an affidavit and there was a direction that evidence to be relied on by the defendant be filed and served by 2 May. The matter was then stood over to the Corporations Judge's list on 9 May.

1. The matter came before me again on 9 May, that is Monday of this week. Leave was granted to the defendant to file another affidavit of the same deponent and the originating process was then fixed for hearing before the Corporations Judge at 2 o'clock today.

1. No foreshadowing of any s 459S application was made by the defendant on any of those occasions. The matter was raised before the Court for the first time today when the originating process seeking winding up was called on for hearing.

1. The Court of Appeal has made it clear in Switz Pty Ltd v Glowbind Pty Ltd [2000] NSWCA 37; (2000) 33 ACSR 723 that a s 459S application must be raised and dealt with separately from the final hearing of the winding up proceedings so that, as it were, the form and substance of the winding-up proceedings are clearly delineated before they are heard.

1. That militates very strongly against the course the defendant now wishes to take; added to which there is the practical point that the defendant could on any of the occasions I have mentioned when the matter was previously before the court sought leave to file an interlocutory process under s 459S.

1. It has been said that there's been a change of counsel. That to my mind, does not alter the fact that the plaintiff has come here today expecting - as it is entitled to expect - the shape of the proceedings to be as it was when the matter was last before the court and was fixed for hearing.

1. In the whole of those circumstances and bearing in mind the principles in s 56 of the Civil Procedure Act 2005, the application for leave to file an interlocutory process seeking leave under s 459S is refused.

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Decision last updated: 17 May 2011