Whelpton, K. v Braams Constructions P/L

[1994] FCA 771

JUDGMENT No. ..... ...,..,/ , 771 % , . , .

NOT FOR DISTRIBUTION

FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY)	No NG 3050 of 1994
GENERAL DIVISION	1

BETWEEN :

KEVIN WHELPTON

Applicant

AND :

BRAAMS CONSTRUCTIONS PTY LIMITED

Respondent

CORAM :  SACKVILLE J.

RECEIVED

DATE :	7 OCTOBER 1994
PLACE :	SYDNEY  2 5 OCT 1994

FEDERAL COURT OF

AUSTRALIA PRINCIPAL REGISTRY

REASONS FOR JUDGMENT

HIS HONOUR: In this matter, Whelpton v Braams Construction ptv Limited, No. NG 3050 of 1994 I have been told that it is necessary to extend the period within which the application for the company to be wound up is to be determined. This is because s.459R(l) of the corporations Law provides that:

Section 459R(2) provides that the court may extend the period

An application for a company to be wound up and insolvency is to be determined within six months after it is made.

within which an application must be determined but only it is satisfied that special circumstances justify the extension and the order is made within the period prescribed by subsection or is last extended.

I have been told that the period has previously been extended

by an order of Beaumont J granted on 8 August 1994. That period expires today. I have also been told that on 20 September 1994 Tamberlin J delivered a judgment in which his Honour ordered that the application for leave on the part of the company to oppose the application and the substantive application be dealt with together. The parties have agreed that the period ought to be extended. It does seem to me that having regard to the course of the matter and in particular the orders made by Tamberlin J that there are special circumstances within the meaning of section 459R(2)(a). Accordingly, I am prepared to extend the period during which the application for the company to be wound up is to be determined.

The parties have agreed upon short minutes of order. I shall	initial those short minutes and place them with the papers and
I shall make orders in accordance with them. I indicate that under the terms of the short minutes the period within which the application for the respondent to be wound up is to be determined is extended until 10 February 1995. Subpoenas are returnable on 21 October 1994. The respondent is directed to serve and file any further affidavit upon which it seeks to rely by 11 November 1994. The parties are to have liberty to approach the list clerk in order to obtain a hearing date on an estimate of, and I shall write this into paragraph 4, on an estimate of two days duration.
The proceedings are stood over until 10 February 1995 and there is liberty to apply on 48 hours notice. I will add to paragraph 1 the words "is to be determined" after the word "up" and before the word "be" , because that I think follows
the language of section 459R(1). I shall initial those short
minutes and place them with the papers.

I certify that this and the preceding 2

pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate:

Dated: 20 October, 1994

Heard:	7 October 1994
Place:	Sydney

Decision:	7 October 1994
Appearances:	Mr McGuiness, instructed by Gilbert & Tobin, Solicitors, appeared for the applicant.
Mr Tillman, instructed by Ross Koffel, Solicitors, appeared for the respondent.