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Zervas v Burkitt

Zervas v Burkitt

Case [2019] NSWCA 112 17 May 2019

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zervas v Burkitt [2019] NSWCA 112
Hearing dates: 13 May 2019
Decision date: 17 May 2019
Before: Gleeson JA
Decision:
(1) Leave be granted to the appellant under s 471B of the Corporations Act 2001 (Cth) nunc pro tunc to commence and proceed with the appeal against Ultimate Car Rentals Australia Pty Ltd (in liquidation).

(2) Leave be granted to the cross-appellant under s 471B of the Corporations Act 2001 (Cth) nunc pro tunc to commence and proceed with the cross-appeal against Ultimate Car Rentals Australia Pty Ltd (in liquidation).

(3)   In lieu of personal service, service on the second respondent/third cross-respondent of the notice of appeal and the notice of cross-appeal and notice of contention respectively, together with any applicable notice pursuant to the Service and Execution of Process Act 1992 (Cth) to be effected in each case by:

(a)   sending the documents to the second respondent/third cross-respondent by prepaid ordinary post addressed to Unit 4, 32 Millswyn Avenue, Hampton Park, Victoria, 3976;

(b)   leaving a copy of the documents with a person apparently over the age of 16 years at Unit 4, 32 Millswyn Avenue, Hampton Park, Victoria, 3976 or if no such person is present, leaving the documents at that address.

(4)   A copy of this order be served with the notice of appeal and notice of cross-appeal respectively.
(5)   The notice of appeal and notice of cross-appeal to be respectively taken to have been served upon the second respondent/third cross-respondent on the expiry of seven days after the last of the dates upon which there has been compliance with orders 3(a) and 3(b).
(6)   The time for service of the notice of appeal and the notice of cross-appeal respectively upon the second respondent/third cross-respondent be extended to 21 days after the date of this order.
Catchwords:
APPEAL – appeal and cross-appeal – application for leave to proceed against respondent company in liquidation – Corporations Act 2001 (Cth), s 471B – choice between ordinary litigation or proof of debt procedure
APPEAL – appeal and cross-appeal – application for substituted service on respondent – where initiating process to be served in another state – where service is likely to bring proceedings to the attention of the intended recipient
Legislation Cited: Australian Consumer Law, s 236
Civil Liability Act 2002 (NSW), ss 34, 35
Corporations Act 2001 (Cth), ss 471B, 500(2)
Service and Execution of Process Act 1992 (Cth), ss 8, 12, 15(1), 130
Uniform Civil Procedure Rules 2005 (NSW), r 10.14
Cases Cited: Amos Removals & Storage Pty Ltd v Small (1981) 2 NSWLR 525
Atkinson v Crowley [2011] NSWCA 194
Attard v James Legal Pty Ltd [2010] NSWCA 311; (2010) 80 ACSR 585
BPM Pty Ltd v HPM Pty Ltd (1996) 14 ACLC 857
Cassegrain v Gerard Cassegrain & Co Pty Ltd (in liq) [2012] NSWCA 435
Chappel v Coyle (1985) 2 NSWLR 73
Chief Commissioner of State Revenue v CCM Holdings Trust Pty Ltd…

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.

Continue reading Zervas v Burkitt

Details

AGLC: Zervas v Burkitt [2019] NSWCA 112
Case: [2019] NSWCA 112
Decision Date: 17 May 2019

CaseChat Overview and Summary

The appeal and cross-appeal concerned an application for leave to proceed against a respondent company in liquidation, Ultimate Car Rentals Australia Pty Ltd, under section 471B of the Corporations Act 2001 (Cth). The proceedings also involved an application for substituted service on the respondent, where the initiating process was to be served in another state and was likely to bring the proceedings to the attention of the intended recipient. The matter was heard by Gleeson JA.

The primary legal issues before the court were whether leave should be granted under section 471B of the Corporations Act 2001 (Cth) to commence and proceed with the appeal and cross-appeal against the company in liquidation, and whether substituted service should be ordered in lieu of personal service on the respondent.

Gleeson JA granted leave to both the appellant and the cross-appellant under section 471B of the Corporations Act 2001 (Cth) *nunc pro tunc* to commence and proceed with their respective appeals against Ultimate Car Rentals Australia Pty Ltd (in liquidation). The court also ordered substituted service of the notice of appeal and notice of cross-appeal, along with any applicable notices under the Service and Execution of Process Act 1992 (Cth). This substituted service was to be effected by sending the documents by prepaid ordinary post to a specified address in Victoria and by leaving a copy of the documents with a person apparently over the age of 16 years at that address, or if no such person was present, by leaving the documents at the address. The court further ordered that a copy of its order be served with the notices of appeal and cross-appeal, and that the notices be taken to have been served seven days after compliance with the substituted service orders. The time for service was extended to 21 days from the date of the order.

Orders

Orders of the court

(1) Leave be granted to the appellant under s 471B of the Corporations Act 2001 (Cth) nunc pro tunc to commence and proceed with the appeal against Ultimate Car Rentals Australia Pty Ltd (in liquidation).

(2) Leave be granted to the cross-appellant under s 471B of the Corporations Act 2001 (Cth) nunc pro tunc to commence and proceed with the cross-appeal against Ultimate Car Rentals Australia Pty Ltd (in liquidation).

(3) In lieu of personal service, service on the second respondent/third cross-respondent of the notice of appeal and the notice of cross-appeal and notice of contention respectively, together with any applicable notice pursuant to the Service and Execution of Process Act 1992 (Cth) to be effected in each case by:

(a) sending the documents to the second respondent/third cross-respondent by prepaid ordinary post addressed to Unit 4, 32 Millswyn Avenue, Hampton Park, Victoria, 3976;

(b) leaving a copy of the documents with a person apparently over the age of 16 years at Unit 4, 32 Millswyn Avenue, Hampton Park, Victoria, 3976 or if no such person is present, leaving the documents at that address.

(4) A copy of this order be served with the notice of appeal and notice of cross-appeal respectively.

(5) The notice of appeal and notice of cross-appeal to be respectively taken to have been served upon the second respondent/third cross-respondent on the expiry of seven days after the last of the dates upon which there has been compliance with orders 3(a) and 3(b).

(6) The time for service of the notice of appeal and the notice of cross-appeal respectively upon the second respondent/third cross-respondent be extended to 21 days after the date of this order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Zervas v Burkitt [2019] NSWCA 112

Most Recent Citation

Hillig, in the matter of Battaglia [2019] FCA 2191

Cases citing this decision · 20 of 20 shown

GO Markets Pty Ltd v Gupta
[2025] FCA 554 Para 16

…is not subjected to a multiplicity of actions which would be both expensive and time-consuming, and in some cases unnecessary: see Zervas v Burkitt [2019] NSWCA 112 at [15]. The requirement for leave focusses attention on the choice between litigation and the proof of debt procedure in a bankruptcy. It will general…
Tse v Evans as trustee in bankruptcy for Ngo
[2024] FCA 787 Para 14

…t is not subjected to a multiplicity of actions which would be both expensive and time-consuming, and in some cases unnecessary: see Zervas v Burkitt [2019] NSWCA 112 at [15]. The requirement for leave focusses attention on the choice between litigation and the proof of debt procedure in a bankruptcy. It will gener…
Farquhar v Rio Dorado Limited (in liquidation)
[2024] NSWSC 585 Para 12

…The considerations to which I must have regard in an application for leave under s 471B were amply summarised in Zervas v Burkitt [2019] NSWCA 112 by Gleeson JA at [15] and [16], which provide:…
Sev.en Gamma a.s. v IG Power (Callide) Pty Ltd (Administrators Appointed)
[2024] FCA 30 Para 6

…under s 440D(1)(b), so as to avoid creating a distraction for the administrators in the performance of their statutory obligations: Zervas v Burkitt [2019] NSWCA 112 [16]. Whilst that general proposition can be accepted, it is more relevantly applied to claims that are made against the company under administration…
McMillan v Coolah Home Base Pty Ltd
[2023] NSWCA 172 Para 81

…f in the appeal. Having regard to the considerations affecting the grant of leave to proceed, which were summarised by Gleeson JA in Zervas v Burkitt [2019] NSWCA 112 (“ Zervas ”) at [16], I consider that it is appropriate to grant leave in this case, noting in particular that the appellants brought the application…
Minarovic v Unique Living Australia Pty Ltd (in liq)
[2023] NSWSC 712 Para 45

…hat leave should not be granted. As a practical matter, the proceedings will not therefore involve a distraction to the liquidator ( Zervas v Burkitt [2019] NSWCA 112 at [18] (Gleeson JA)), which is a consideration in favour of granting leave.…
In the matter of E&P Investments Limited as responsible entity of the US Masters Residential Property Fund
[2022] NSWSC 1781 Para 11

…Mr Assaf also draws attention to the decision of Gleeson JA in Zervas v Burkitt [2019] NSWCA 112, where Gleeson JA made orders for substituted service under UCPR r 10.14, where he was satisfied (at [29]) that a notice could not practically be served personally on a particular person, and that it was reasonably like…
EMG Stone Pty Ltd v Gonda
[2022] NSWSC 1674 Para 6

…ainst a company in liquidation and not “defensive procedural measures” by defendants in proceedings initiated by the company. In Zervas v Burkitt [2019] NSWCA 112 at [11], Gleeson JA concluded that there “are authorities that a ‘defensive proceeding’ is not subject to the requirement of leave under s 471B or s 500(…
Banerjee (Liquidator), in the matter of Eastside Formwork Pty Ltd (in liq) v Stojic
[2022] FCA 1315 Para 20

…t is not subjected to a multiplicity of actions which would be both expensive and time-consuming, and in some cases unnecessary: see Zervas v Burkitt [2019] NSWCA 112 at [15]. 7 The requirement for leave focusses attention on the choice between litigation and the proof of debt procedure in a bankruptcy. It will gen…
Huber V CellOS Software Ltd (in liq)
[2022] FCA 744 Para 17

…nt in favour of a company in liquidation is subject to the statutory stay. Gleeson JA usefully summarised the course of authority in Zervas v Burkitt [2019] NSWCA 112 at [11]- [14] as follows: There are authorities that a “defensive proceeding” is not subject to the requirement of leave under s 471B or s 500(2) of…
ACN 168 479 614 Pty Ltd (formerly known as Steller Developments Pty Ltd) (in liq) (Receivers & Managers appointed) v Smedley, in the matter of ACN 168 479 614 Pty Ltd
[2022] FCA 282 Para 9

…t is not subjected to a multiplicity of actions which would be both expensive and time-consuming, and in some cases unnecessary: see Zervas v Burkitt [2019] NSWCA 112 at [15]. [7]The requirement for leave focusses attention on the choice between litigation and the proof of debt procedure in a bankruptcy. It will ge…
In the matters of Datalec Services Pty Ltd (in liq) and Ichor Constructions Pty Ltd (in liq)
[2021] NSWSC 1183 Para 3

…which may be expensive, time-consuming and unnecessary where claims against the company can be pursued by the proof of debt process: Zervas v Burkitt [2019] NSWCA 112 at [15] per Gleeson JA.…
Kitay (Liquidator) v Trenfield (Trustee)
[2021] FCA 508 Para 22

…racey J). The relevant factors affecting the exercise of the discretion to grant leave to proceed cannot be stated exhaustively: see Zervas v Burkitt [2019] NSWCA 112 at [16]. Consideration…
Bailey, in the matter of Australian Recruiting Group Pty Ltd (in liq) v Aningat
[2020] FCA 1319 Para 9

…is not subjected to a multiplicity of actions which would be both expensive and time-consuming, and in some cases unnecessary: see Zervas v Burkitt [2019] NSWCA 112 at [15]. 7The requirement for leave focusses attention on the choice between litigation and the proof of debt procedure in a bankruptcy. It will genera…
Segal v Sharma
[2020] NSWCA 192 Para 3

…of leave is required: Distinctive FX 9 Pty Ltd v Statewide Developments Pty Ltd [2012] NSWCA 393 at [13] (see also the discussion in Zervas v Burkitt [2019] NSWCA 112 at [11]-[14]).…
Hillig, in the matter of Battaglia
[2019] FCA 2191 Para 6

…t is not subjected to a multiplicity of actions which would be both expensive and time-consuming, and in some cases unnecessary: see Zervas v Burkitt [2019] NSWCA 112 at [15].…
Caron v Said Jahani and John McInerney as joint and several liquidators of Courtenay House Capital Trading Group Pty Ltd (In liq) and Courtenay House Pty Ltd (In liq)
[2019] NSWCA 293 Para 12

…s not opposed by the liquidator, it is well understood that the Court may grant such leave nunc pro tunc , as noted by Gleeson JA in Zervas v Burkitt [2019] NSWCA 112 at [20]. It is, however, necessary that the Court be satisfied that it is appropriate to grant leave: there is the need to be satisfied that there is…
Taouk v Assure (NSW) Pty Ltd
[2019] NSWCA 224 Para 3

…ings separate from those at first instance ( Distinctive FX 9 Pty Ltd v Statewide Developments Pty Limited [2012] NSWCA 393 at [13]; Zervas v Burkitt [2019] NSWCA 112 at [14]; Huang v Hua Cheng International Group Pty Ltd [2019] NSWCA 155 at [21]; Ekes v Hyde Page (No 2) [2019] NSWCA 169 at [31]). The language of s…
Ekes v Hyde Page (No 2)
[2019] NSWCA 169 Para 31

…iggered the leave requirement contained in s 471B with respect to a winding up in insolvency. As recently noted by Gleeson JA in Zervas v Burkitt , [2019] NSWCA 112 at [14], and the Court in Huang v Hua Cheng International Group Pty Ltd [2019] NSWCA 155 at [21], Distinctive FX 9 has been followed consistently by th…
Huang v Hua Cheng International Group Pty Ltd
[2019] NSWCA 155 Para 21

…been followed consistently by this Court. On this matter being raised, Mr Yeh for the applicants sought such leave. 1. [2012] NSWCA 393 at [13]. 2. [2019] NSWCA 112 at [14].…

View all 20 citing cases →

Cases cited in this decision · 14 of 14 shown

Burkitt v Ultimate Car Rentals Australia P/L
[2018] NSWDC 328 Para 3

…The appeal and cross-appeal concern a judgment of Levy SC DCJ, delivered on 2 November 2018: Burkitt v Ultimate Car Rentals Australia P/L [2018] NSWDC 328. The dispute in the proceeding below related to a 2006 F430 Spider Ferrari motor vehicle owned by Dr Burkitt, who gave possession of the vehicle to Ultimate and…
Commissioner of Taxation of the Commonwealth of Australia v 4 Doonan Street Collinsville Pty Ltd (in liq)
[2016] NSWCA 69 Para 14

…Naaman v Sleiman [2015] NSWCA 259 at [82]; Commissioner of Taxation of the Commonwealth of Australia v 4 Doonan Street Collinsville Pty Ltd (in liq) [2016] NSWCA 69 at [31]. Mr Zervas and Dr Burkitt both accept that they need leave and it is appropriate to proceed upon that basis. There is no need to consider whe…
Naaman v Sleiman
[2015] NSWCA 259 Para 14

…Pty Ltd (in liq) [2012] NSWCA 435 at [31]; Chief Commissioner of State Revenue v CCM Holdings Trust Pty Ltd [2014] NSWCA 42 at [3]; Naaman v Sleiman [2015] NSWCA 259 at [82]; Commissioner of Taxation of the Commonwealth of Australia v 4 Doonan Street Collinsville Pty Ltd (in liq) [2016] NSWCA 69 at [31]. Mr Zervas…
DSG Holdings Australia Pty Ltd v Helenic Pty Ltd
[2014] NSWCA 96 Para 15

…ion to the choice between ordinary litigation and the more streamlined procedure of a proof of debt: DSG Holdings Australia Pty Ltd v Helenic Pty Ltd [2014] NSWCA 96; (2014) 99 ACSR 121 at [55] (Leeming JA, Meagher JA and Bergin CJ in Eq agreeing).…
Chief Commissioner of State Revenue v CCM Holdings Trust Pty Ltd
[2014] NSWCA 42 Para 14

…fter: Cassegrain v Gerard Cassegrain & Co Pty Ltd (in liq) [2012] NSWCA 435 at [31]; Chief Commissioner of State Revenue v CCM Holdings Trust Pty Ltd [2014] NSWCA 42 at [3]; Naaman v Sleiman [2015] NSWCA 259 at [82]; Commissioner of Taxation of the Commonwealth of Australia v 4 Doonan Street Collinsville Pty Ltd (…
Flo Rida v Mothership Music Pty Ltd
[2013] NSWCA 268 Para 29

…Amos Removals & Storage Pty Ltd v Small (1981) 2 NSWLR 525 at 529; Atkinson v Crowley [2011] NSWCA 194 at [38]; Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 at [37].…
Ong v Lottwo Pty Ltd (in liq)
[2013] SASCFC 57 Para 20

…y grant leave nunc pro tunc : Oceanic Life Ltd v Insurance and Retirement Services Pty Ltd (in liq) (1993) 11 ACSR 516; Ong v Lottwo Pty Ltd (in liq) [2013] SASCFC 57; (2013) 116 SASR 280 at [59]. It is appropriate to make such an order in the present case given that the appeal and cross-appeal were both commenced…
Cassegrain v Gerard Cassegrain & Co Pty Ltd (in liq)
[2012] NSWCA 435 Para 14

…That approach has been followed in this Court thereafter: Cassegrain v Gerard Cassegrain & Co Pty Ltd (in liq) [2012] NSWCA 435 at [31]; Chief Commissioner of State Revenue v CCM Holdings Trust Pty Ltd [2014] NSWCA 42 at [3]; Naaman v Sleiman [2015] NSWCA 259 at [82]; Commissioner of Taxation of the Commonwealth of…
Distinctive FX 9 Pty Ltd v Statewide Developments Pty Ltd
[2012] NSWCA 393 Para 13

…In Distinctive FX 9 Pty Limited v Statewide Developments Pty Limited [2012] NSWCA 393 at [13], Beazley JA (as her Honour then was) reviewed the authorities and concluded:…
Atkinson v Crowley
[2011] NSWCA 194 Para 29

…Mr Amro’s attention: Chappel v Coyle (1985) 2 NSWLR 73 at 86; Amos Removals & Storage Pty Ltd v Small (1981) 2 NSWLR 525 at 529; Atkinson v Crowley [2011] NSWCA 194 at [38]; Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 at [37].…
Attard v James Legal Pty Ltd
[2010] NSWCA 311 Para 16

…cannot be stated exhaustively: Ogilvie-Grant v East at 672; Re Gordon Grant and Grant Pty Ltd [1983] 2 Qd R 314 at 317; Attard v James Legal Pty Ltd [2010] NSWCA 311; (2010) 80 ACSR 585 at [136]. The particular factors raised for consideration in the present case are: the amount and seriousness of the claim; the d…
Skinner v Jeogla Pty Ltd
[2001] NSWCA 15 Para 12

…rence in Humber to a “defensive proceeding” encompasses prosecuting an appeal was doubted, but not finally determined in Skinner v Jeogla Pty Ltd [2001] NSWCA 15; (2001) 37 ACSR 106 at [20] (Spigelman CJ) and [59] (Ipp AJA).…
Lazar v Taito (Australia) Pty Ltd
[1985] FCA 38 Para 29

…t and by a further copy of the documents being left at the Hampton Park property will bring the proceedings to Mr Amro’s attention: Chappel v Coyle (1985) 2 NSWLR 73 at 86; Amos Removals & Storage Pty Ltd v Small (1981) 2 NSWLR 525 at 529; Atkinson v Crowley [2011] NSWCA 194 at [38]; Flo Rida v Mothership Music Pty…
Ogilvie-Grant v East
3 QB 584 Para 15

…relevant to a decision whether to grant leave under s 471B are discussed by McPherson J (Campbell CJ and Sheahan J agreeing) in Ogilvie-Grant v East (1983) 7 ACLR 669. The purpose of the requirement of leave is to ensure that a company in liquidation is not subjected to a multiplicity of actions which would be both…

Legislation cited in this decision · 4

Service and Execution of Process Act 1992 (Cth)
12, 130, 15(1), 8 5 mentions (from Para 21)
Corporations Act 2001 (Cth)
471B, 500(2) 3 mentions (from Para 9)
Civil Liability Act 2002 (TAS)
34, 35 2 mentions (from Para 5)
Uniform Civil Procedure Rules 2005 (NSW)
10.14 1 mention (from Para 25)

Medium Neutral Citation:	Zervas v Burkitt [2019] NSWCA 112
Hearing dates:	13 May 2019
Decision date:	17 May 2019
Before:	Gleeson JA
Decision:	(1) Leave be granted to the appellant under s 471B of the Corporations Act 2001 (Cth) nunc pro tunc to commence and proceed with the appeal against Ultimate Car Rentals Australia Pty Ltd (in liquidation). (2) Leave be granted to the cross-appellant under s 471B of the Corporations Act 2001 (Cth) nunc pro tunc to commence and proceed with the cross-appeal against Ultimate Car Rentals Australia Pty Ltd (in liquidation). (3) In lieu of personal service, service on the second respondent/third cross-respondent of the notice of appeal and the notice of cross-appeal and notice of contention respectively, together with any applicable notice pursuant to the Service and Execution of Process Act 1992 (Cth) to be effected in each case by: (a) sending the documents to the second respondent/third cross-respondent by prepaid ordinary post addressed to Unit 4, 32 Millswyn Avenue, Hampton Park, Victoria, 3976; (b) leaving a copy of the documents with a person apparently over the age of 16 years at Unit 4, 32 Millswyn Avenue, Hampton Park, Victoria, 3976 or if no such person is present, leaving the documents at that address. (4) A copy of this order be served with the notice of appeal and notice of cross-appeal respectively. (5) The notice of appeal and notice of cross-appeal to be respectively taken to have been served upon the second respondent/third cross-respondent on the expiry of seven days after the last of the dates upon which there has been compliance with orders 3(a) and 3(b). (6) The time for service of the notice of appeal and the notice of cross-appeal respectively upon the second respondent/third cross-respondent be extended to 21 days after the date of this order.
Catchwords:	APPEAL – appeal and cross-appeal – application for leave to proceed against respondent company in liquidation – Corporations Act 2001 (Cth), s 471B – choice between ordinary litigation or proof of debt procedure APPEAL – appeal and cross-appeal – application for substituted service on respondent – where initiating process to be served in another state – where service is likely to bring proceedings to the attention of the intended recipient
Legislation Cited:	Australian Consumer Law, s 236 Civil Liability Act 2002 (NSW), ss 34, 35 Corporations Act 2001 (Cth), ss 471B, 500(2) Service and Execution of Process Act 1992 (Cth), ss 8, 12, 15(1), 130 Uniform Civil Procedure Rules 2005 (NSW), r 10.14
Cases Cited:	Amos Removals & Storage Pty Ltd v Small (1981) 2 NSWLR 525 Atkinson v Crowley [2011] NSWCA 194 Attard v James Legal Pty Ltd [2010] NSWCA 311; (2010) 80 ACSR 585 BPM Pty Ltd v HPM Pty Ltd (1996) 14 ACLC 857 Cassegrain v Gerard Cassegrain & Co Pty Ltd (in liq) [2012] NSWCA 435 Chappel v Coyle (1985) 2 NSWLR 73 Chief Commissioner of State Revenue v CCM Holdings Trust Pty Ltd…