Tyrrell v Tyrrells Building Consultancy Pty Ltd - [2008] NSWSC 416

CITATION: Tyrrell v Tyrrells Building Consultancy Pty Ltd [2008] NSWSC 416

HEARING DATE(S): 5 May 2008

JUDGMENT DATE :
7 May 2008

JURISDICTION: Equity

JUDGMENT OF: Austin J

DECISION: Orders made for reinstatement of registration and for leave to make a cross-claim against the company for apportionment of liability

CATCHWORDS: CORPORATIONS - reinstatement - application by defendant in building claim proceedings who wishes to obtain apportionment of liability against company - reinstatement opposed by plaintiff in building claim proceedings - whether applicant a person aggrieved by the deregistration - whether Court satisfied that it is just to reinstate registration - whether, in circumstances where company would be in insolvent liquidation if reinstated, leave should be granted to permit cross-claim against the company for apportionment of liability

LEGISLATION CITED: Corporations Act 2001 (Cth), ss 471B, 601AH
Environmental Planning and Assessment Act 1979 (NSW), s 109ZJ

CASES CITED: AMP Insurance Ltd v Victorian WorkCover Authority [2006] VSCA 236
Australian Competition & Consumer Commission v Australian Securities & Investments Commission (2000) 34 ACSR 232
Donmastry Pty Ltd v Albarran (2004) 49 ACSR 745
Herbert v Nozala Pty Ltd [2006] NSWSC 1437
Ibbco Trading Pty Ltd v HIH Casualty & General Insurance Ltd (in prov liq) [2001] NSWSC 346
Keith Woods v Rodney Mario De Gabriele [2007] VSC 177
Krstevska v ACN 010 505 102 Pty Ltd (2001) 20 ACLC 292
Nu Life Air Conditioning Pty Ltd v Reef Building Contractors Pty Ltd [2006] NSWSC 1245
Ogilvie-Grant v East (1983) 7 ACLR 669
Re Gordon Grant and Grant Pty Ltd (1982) 1 ACLC 196
Re Proserpine Pty Ltd and the Companies Act (1980) 5 ACLR 603
Re Sydney Formworks Pty Ltd (in liq) [1965] NSWR 646
Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8
Westbury Holdings Kiama Pty Ltd v ASIC [2007] NSWSC 115
WorkCover Authority of New South Wales v Picton Truck & Trailer Repairs Pty Ltd (De-registered) (2004) 51 ACSR 102

PARTIES: Jeremy White Tyrrell (Plaintiff)
Tyrrells Building Consultancy Pty Ltd (First Defendant)
The Owners Strata Plan 40022 (Second Defendant)

FILE NUMBER(S): SC 2217/08

COUNSEL: M J Dawson (Plaintiff)
D C Price (Second Defendant)

SOLICITORS: Penmans (Plaintiff)
Sachs Gerace Lawyers (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

AUSTIN J

WEDNESDAY 7 MAY 2008

2217/08 JEREMY WHITE TYRRELL V TYRRELLS BUILDING CONSULTANCY PTY LTD & ANOR

JUDGMENT

1 HIS HONOUR: By an originating process filed on 7 April 2008, the plaintiff ("Mr Tyrrell") seeks orders to reinstate Tyrrells Building Consultancy Pty Ltd ("the Company"), which was in liquidation before it was deregistered, to appoint a new liquidator, and to grant leave to Mr Tyrrell under s 471B of the Corporations Act 2001 (Cth) to begin and proceed with cross-claims against the Company for apportionment and contribution in the District Court of New South Wales. ASIC has been notified of the application for reinstatement and does not oppose it, on the usual conditions.

2 Mr Tyrrell was the director of the Company, which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWSC 416
Decision Date: 7 May 2008

CaseChat Overview and Summary

The case of Tyrrell v Tyrrells Building Consultancy Pty Ltd involved the plaintiff, a builder, bringing an action against the defendant, a company, for work done and materials supplied in relation to residential premises. The company sought to obtain an apportionment of liability against the plaintiff by way of a cross-claim. However, the company's registration had been cancelled, and the plaintiff opposed the reinstatement of the company's registration. The legal issues before the court were whether the applicant was a person aggrieved by the deregistration, whether the court was satisfied that it was just to reinstate the registration, and whether leave should be granted to permit a cross-claim against the company for apportionment of liability.

The court found that the applicant was a person aggrieved by the deregistration as the company's registration was necessary for the applicant to pursue a cross-claim for apportionment of liability. The court also found that it was just to reinstate the registration as the applicant had established that there was a real prospect of success in the cross-claim and that the company would not be placed in insolvent liquidation if reinstated. The court noted that the company's financial position was not as dire as first thought and that there was a reasonable prospect that the company could pay its debts if the registration was reinstated. The court granted leave for the cross-claim to proceed against the company, subject to certain conditions.

The final orders of the court were that the registration of the company be reinstated and that leave be granted for the cross-claim to proceed against the company, subject to the conditions set out in the judgment. The court also ordered that the plaintiff pay the costs of the application. The case highlights the importance of considering the financial position of a company when deciding whether to reinstate its registration and the potential consequences of not doing so for parties seeking to pursue cross-claims.

Orders