Wilson v Manna Hill Mining Company Pty Ltd

[2004] FCA 371

FEDERAL COURT OF AUSTRALIA

Wilson v Manna Hill Mining Company Pty Ltd [2004] FCA 371

Corporations Act 2001 (Cth)

WAYNE STEPHEN WILSON & ANOR v MANNA HILL MINING COMPANY PTY LTD & ORS

No S 3004 of 2003

LANDER J
ADELAIDE
24 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 3004 OF 2003

BETWEEN:	WAYNE STEPHEN WILSON FIRST APPLICANT
GAYLE LAWTON SECOND APPLICANT
AND:	MANNA HILL MINING COMPANY PTY LTD ACN 075 590 644 FIRST RESPONDENT
DAVID GERALD MOORE SECOND RESPONDENT
GRAHAM DESMOND HAGGER THIRD RESPONDENT
EAST ADELAIDE COMPANY PTY LTD ACN 010 070 612 FOURTH RESPONDENT
DENE ROBERT SPRATT FIFTH RESPONDENT
STEPHEN JOHN EWEN SIXTH RESPONDENT
HODGEMORE PTY LTD ACN 092 397 629 SEVENTH RESPONDENT
MANNA HILL GOLD PTY LTD ACN 106 678 540 EIGHTH RESPONDENT
JUDGE:	LANDER J
DATE OF ORDER:	24 MARCH 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.I reserve the question of costs in relation to the application for the extension of time within which to convene a meeting of Manna Hill Mining Company Pty Ltd’s creditors against all parties, except that I order the second respondent to pay the applicants’ costs occasioned by the second respondent’s opposition to the applicants’ application.  I fix those costs at $600.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 3004 OF 2003

BETWEEN:	WAYNE STEPHEN WILSON FIRST APPLICANT
GAYLE LAWTON SECOND APPLICANT
AND:	MANNA HILL MINING COMPANY PTY LTD ACN 075 590 644 FIRST RESPONDENT
DAVID GERALD MOORE SECOND RESPONDENT
GRAHAM DESMOND HAGGER THIRD RESPONDENT
EAST ADELAIDE COMPANY PTY LTD ACN 010 070 612 FOURTH RESPONDENT
DENE ROBERT SPRATT FIFTH RESPONDENT
STEPHEN JOHN EWEN SIXTH RESPONDENT
HODGEMORE PTY LTD ACN 092 397 629 SEVENTH RESPONDENT
MANNA HILL GOLD PTY LTD ACN 106 678 540 EIGHTH RESPONDENT

JUDGE:	LANDER J
DATE:	24 MARCH 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application by the first and second applicants for costs against the second respondent in relation to an application made this morning to extend the time within which the administrator has to convene a meeting of the first respondent for a period of 60 days from 5 April 2004.

2. On 20 February 2004 I made an order, pursuant to s 439A(6) of the Corporations Act 2001 (Cth) (‘the Act’), extending the time within which the administrators must convene a meeting of the first respondent for a period of 60 days from 12 February 2004. That order was made because one of the central issues in the proceedings before me, which are part-heard, is whether a directors’ meeting at which the directors then present resolved to appoint the administrators was validly convened, and whether the persons attending as directors were validly appointed. Because they are central issues in the proceedings before me, those matters must be determined before I can determine the first and second applicants’ further assertion that the administrators were themselves invalidly appointed.

3. After the order was made on 20 February 2004, correspondence was exchanged between the solicitors for the applicants and the solicitors for the administrators. The solicitors for the applicants asserted that the administrators should make an application under s 439A(6) of the Act to further extend time for the holding of the meeting.

4. The administrators, on the other hand, refused to make such an application. Further, they asserted that unless the order was extended, they would take steps in their administration to make whatever investigations were required under s 439A so as to be able to report to the meeting of creditors to be held under s 439A(6) of the Act. In those circumstances, the applicants felt it was necessary to bring this application to extend the time for the holding of that meeting.

5. In doing so, of course, they had regard to the fact that the principal issues before me have not been determined as the trial is part-heard.  The trial itself is not to resume until 5 April and, although it is expected that it will complete by 8 April, clearly, no decision is likely to be made by the Court prior to the end of April.  In those circumstances, it was necessary to make this application to preserve the status quo.

6. The administrators are not parties to these proceedings.  I have previously refused an application by the applicants to join the administrators.  However, the solicitor for the administrators appeared this morning and advised that the administrators would abide by an order of the Court.  The administrators did not wish to be heard on the application.  The only matter which they reserved to themselves was whether or not there should be any order in relation to costs.

7. The second respondent, Mr Moore, who is a director of the first respondent, opposed the application.  He sought leave to cross-examine Mr Dominic Agresta on an affidavit which Mr Agresta had sworn in support of this application.  He also advised me that he wished to put a number of facts before me in order to support his opposition to this order. 

8. I refused his application to cross-examine Mr Agresta.  Mr Moore was not able to point to any matter which was relevant to this application on which he wished to challenge Mr Agresta’s deposition.  I also was not able to identify, from anything Mr Moore said, that there were any facts which he wished to put before me which would be relevant to a determination of the issues on this application, which is simply an application to extend time for the convening of the meeting of the first respondent’s creditors.

9. The matter has now taken an hour and a half longer than would have been expected if there had been no opposition.  Mr Abbott QC, who appeared for the applicants, has applied for the costs associated with the prolongation of the hearing as a result of Mr Moore’s opposition to the application.  Mr Abbott has frankly conceded that his client would not be entitled at the present time to the costs of the application itself or to the costs occasioned by his attendance for the making of the order.  He does, however, maintain that his clients are entitled to the costs caused by the extension of the hearing by reason of Mr Moore’s opposition to the application.

10. In my opinion, the opposition to the application was completely without merit.  It was pointless.  In those circumstances, I agree that the applicants ought to have their costs against Mr Moore in relation to the extension of the hearing by reason of that opposition.  Mr Abbott has indicated that the costs would amount to $600, which would include his costs and that of his instructing solicitor, Mr Agresta, who has been in court this morning.  That sum seems to me to be not inappropriate.  I therefore make the following orders in relation to costs.

11. I reserve the question of costs in relation to the application for the extension of time within which to convene a meeting of Manna Hill Mining Company Pty Ltd’s creditors against all parties, except that I order the second respondent to pay the applicants’ costs occasioned by the second respondent’s opposition to the applicants’ application.  I fix those costs at $600.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:             2 April 2004

Counsel for the Applicant:	M L Abbott QC with D Agresta
Solicitor for the Applicant:	Iles Selley
Counsel for the Second and Seventh Respondents:	D G Moore in person
Counsel for the First, Third, Fourth, Fifth, Sixth and Eighth Respondents	No appearance
Date of Hearing:	24 March 2004
Date of Judgment:	24 March 2004