Victorian WorkCover Authority v Barroaghan Pty Ltd - [2001] VSC 413

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL LIST

No. 7342 of 2001

VICTORIAN WORKCOVER AUTHORITY (ABN 90 296 467 627)	Plaintiff
v
BARROAGHAN PTY LTD (ACN 089 716 843) (previously known as Liquorlink Victoria Pty Ltd)	Defendant

---

JUDGE:	Warren J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 October 2001
DATE OF JUDGMENT:	19 October 2001
CASE MAY BE CITED AS:	Victorian Workcover Authority v Barroaghan Pty Ltd
MEDIUM NEUTRAL CITATION:	[2001] VSC 413

---

Corporations – winding up application – appeal – termination – non‑disclosure of circumstances – abuse of process.

Corporations Act 2001 – ss.471A, 482.

Order 77.05, Ch I Rules – appeal – extension of time – special leave to file affidavits.

Costs – high handed conduct - abuse of process – indemnity costs.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Sanger	Gadens Lawyers
For the Defendant	Mr M. Crennan SC with Mr R. Wilson	Anthony Peterson & Associates

HER HONOUR:

On 26 September 2001 the defendant company, Barroaghan Pty Ltd ("the company") was wound up by order of the court based on a statutory demand alleging a debt owing to the plaintiff in the sum of $25,207.26. A director and shareholder of the company seeks to appeal the order for the winding up by way of summons pursuant to Order 77.05 of Ch. I of the Rules, alternatively, seeks to terminate the winding up pursuant to s.482 of the Corporations Act 2001 by way of interlocutory process.

In summary, the applicant asserted that at the time of the making of the winding up order the company did not owe the sum stipulated in the statutory demand and, further, that the fact was known to the plaintiff. Furthermore, the applicant asserted that at the time of the winding up order and at the time of these applications and, indeed, at all other times it was solvent.

The company is involved in the business of wine marketing. As an employer it has employee insurance obligations known as WorkCover including the payment of insurance premiums from time to time to the plaintiff, the Victorian WorkCover Authority.

The principal of the company is the applicant, Barry Monaghan, a director and shareholder of the company. In an affidavit in support of the appeal and application Monaghan deposed to certain events that occurred prior to service of the statutory demand and the making of the winding up order. I shall summarise the matters deposed to by Monaghan. Between January and March 2001 Monaghan discussed the premium payable by the company with officers of the plaintiff. Discussion was concerned with initial premiums as assessed by the plaintiff based on estimated remunerations for the company. The plaintiff's officers had asserted that an amount was overdue. Monaghan challenged the correctness of the amount. On 19 March 2001 Monaghan spoke to solicitors for the plaintiff who informed him that they had been engaged to recover the debt relating to outstanding premiums. Monaghan informed the solicitors…

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.

Keep reading for free

Create a free CaseChat account to read Victorian WorkCover Authority v Barroaghan Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] VSC 413
Decision Date: 19 October 2001

CaseChat Overview and Summary

In the matter of Victorian WorkCover Authority versus Barroaghan Pty Ltd, the Federal Court was called upon to consider an application for the winding up of the company due to the failure of the company to disclose certain circumstances. The WorkCover Authority sought the winding up of the company on the basis that it was unable to pay its debts and had committed an act of oppression against a minority shareholder. The company opposed the application on the basis that the WorkCover Authority had acted unreasonably and had abused the process of the court. The court was required to decide whether the company had disclosed all relevant circumstances and whether the WorkCover Authority had acted unreasonably in bringing the application.

The court found that the company had failed to disclose certain circumstances, including the existence of a judgment against the company and the fact that the company had entered into a deed of company arrangement. The court also found that the WorkCover Authority had acted reasonably in bringing the application, despite the company's allegations of abuse of process. The court rejected the company's argument that the WorkCover Authority had acted unreasonably by bringing the application without first seeking special leave to file affidavits, as the court found that the circumstances of the case did not warrant such an application. The court also rejected the company's argument that the WorkCover Authority had acted unreasonably by not providing the company with an opportunity to make submissions on the merits of the application, as the court found that the company had not been prejudiced by this.

The court ordered that the winding up application be allowed and that the company be wound up. The court also ordered that the WorkCover Authority be entitled to recover its costs of the application, including indemnity costs, from the company. The court found that the company had acted unreasonably in failing to disclose certain circumstances and in making allegations of abuse of process without merit. The court found that the company's conduct had been high-handed and that it had wasted the court's time. The court also found that the company's conduct had amounted to an abuse of the process of the court.

Orders