Rumortex Pty Ltd v Rodgers & Anor [2000] NSWCA 18

New South Wales Court of Appeal

CITATION : Rumortex Pty Ltd v Rodgers & Anor [2000] NSWCA 18 FILE NUMBER(S) : CA 40440/99 HEARING DATE(S) : 31 January 2000 JUDGMENT DATE : 31 January 2000

PARTIES : Rumortex Pty Ltd v Peter Rodgers & Geoffrey McDonald Blackett as Liquidator of Pranx Leisurewear Pty Ltd JUDGMENT OF : Priestley JA at 1; Handley JA at 1; Sheller JA at 1

LOWER COURT JURISDICTION : Supreme Court LOWER COURT ED 4463/97 FILE NUMBER(S) : LOWER COURT Windeyer J JUDICIAL OFFICER :

COUNSEL : Claimant - B.A.J. Coles QC / R.D. Marshall Opponent - C. Bowman (Sol) SOLICITORS : Claimant - Roxburgh & Co Opponent - The Walker Law Group CATCHWORDS : Application for leave to appeal LEGISLATION CITED : Corporations Law CASES CITED: Piglowska v Piglowski (1999) 1 WLR 1360 DECISION : Application dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40440/99 ED 4463/97

PRIESTLEY JA HANDLEY JA SHELLER JA

Monday, 31 January 2000

RUMORTEX PTY LTD v RODGERS & ANOR

1 PRIESTLEY JA (for the Court): This is an application for leave to appeal of a kind which would justify the Court if it were granted in proceeding immediately to deal with the appeal without setting aside a later day for hearing. Accordingly the Court entertained full argument from the applicant as on appeal. Mr Coles QC for the applicant made all the submissions he would have put in a full appeal. 2 However the applicant's initial considerable problem was in showing the Court why leave should be granted. As presented before the trial judge, Windeyer J, the case was a liquidator's claim made in reliance upon s 588FE of the Corporations Law for six amounts of $6,000 paid to one of the company's creditors, a company called Rumortex, during the six months ending on the relation back day, a term defined in s 9 of the Law. 3 The basic question presented to the judge by the parties was whether the company was insolvent when the payments were made. The materials put before the judge by the parties were far from complete. To a large extent he was left to reach his factual conclusions on the conflicting evidence of two experts. It was common ground that the first of the six payments was made on the first day of the six month period. On the materials and arguments before him, the judge made various findings of fact and decided the liquidator should recover the first of the six payments but none of the others. 4 Rumortex is the applicant for leave to appeal. It wants to keep the $6,000 ordered to be paid to the liquidator as well as the other five payments from the company it was permitted to retain and also wants its costs of the proceedings before Windeyer J. When Mr Coles, who I should say did not appear at first instance, was asked for what legal proposition Windeyer J's judgment could be cited as authority in conflict with any required legal proposition, he answered none. This was in the Court's opinion a fair and correct answer. 5 The applicant's first submission sought to raise an argument not raised before the trial judge. The applicant wanted to argue that on its interpretation of s 588FE subs 2 para B subpar 1 of the Law, the first payment had been made the day before the first day of the relevant six months and so did not fall within s 558FE at all. The Court will not allow this point to be raised in this application. Had it been raised below, it is quite possible that the common ground about the date would have disappeared and a different factual basis concerning that issue would have emerged. Had Rumortex wished to argue the point, it should have done so at first instance. The Court will not allow it to be raised now on an unsatisfactory factual basis. 6 Although in the circumstances it should go without saying, this Court nevertheless wishes to make it quite clear that Windeyer J's decision is in no sense an authority on the proper interpretation of the subparagraph now for the first time sought to be put in question. 7 The main contention for the applicant was that Windeyer J made a factual mistake in his application of the law to the first payment. The Court is not at all persuaded that this is so, although it may be that it is arguable. Even if it were so, the Court would not be willing to grant leave to appeal. There is no point of law involved. Leave to appeal is required when the amount in issue is less than $100,000. Here the applicant wishes to argue about an amount in issue of $6,000. The applicant says it is unjust for Rumortex to be deprived of this amount because of what it says is an error of the trial judge. 8 What is justice in the circumstances of this case involves more than this submission of the applicant recognises. Amongst other things, the fourth consideration mentioned by Lord Hoffman (referred to in argument today) in Piglowska v Piglowski (1999) 1 WLR 1360 at 1373 could well be relevant in a case of the present kind. His Lordship there mentioned that a matter for consideration is the principle of proportionality between the amount at stake and the legal resources of the parties and the community which it is appropriate to spend on resolving the dispute. 9 Here, on a somewhat perfunctory presentation to the trial court by both parties, the judge promptly decided what was put to him as an essentially factual question. He made no error of any legal principle argued before him. The case as he said was not appropriate for the Supreme Court. When he said that, the amount in issue was $36,000. Still less in the Court's opinion would it be appropriate to permit an appeal to go forward about one-sixth of that amount in all the circumstances of this case. 10 The application is dismissed with costs.