WILY v DINERS CLUB [2000] NSWSC 1192

Reported Decision : (2001) 19 ACLC 846

New South Wales Supreme Court

CITATION : WILY v DINERS CLUB [2000] NSWSC 1192 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3812/2000 HEARING DATE(S) : 29/11/2000 JUDGMENT DATE : 29 November 2000

PARTIES : Andrew Hugh Jenner Wily (In his capacity as liquidator of ACN 003.330.230 Pty Limited (In liquidation) formerly Bertram & Son) & Anor v Diners Club Pty Limited JUDGMENT OF : Master Macready at 1

COUNSEL : J.K. Chippindall for plaintiff S. Climpson for defendant SOLICITORS : M.D. Mikolaidis & Co. for plaintiff Freehills, Melbourne for defendant CATCHWORDS : Corporations Law. Application for summary dismissal in respect of Liquidator's claim under S 588FFof the Corporations Law. Application made out of time. Proceedings dismissed. CASES CITED : David Grant & Co Pty Limited v Westpac Banking Corporation (1995) 184 CLR 265; Starr & Ors v National Australia Bank Limited (1930) ACSR 538. DECISION : Paragraph 9

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THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

WEDNESDAY 29 NOVEMBER 2000

3812/00 - ANDREW HUGH JENNER WILY (IN HIS CAPACITY AS LIQUIDATOR OF ACN. 003.330.230 PTY LIMITED (IN LIQUIDATION) FORMERLY BERTRAM & SON) & ANOR v DINERS CLUB PTY LIMITED

JUDGMENT - On application for summary dismissal 1 MASTER: This is the hearing of an interlocutory application filed 27 November 2000 by the defendants, which seeks that the proceedings be dismissed under Pt1 r5. The proceedings are ones which were commenced on 1 September 2000 by the liquidator of a company seeking to recover moneys pursuant to s588FF. 2 The company was one which was wound up following upon the presentation of a summons for its winding up, which summons had been extended by various adjournments over a period of some two years. There was also an attempt to appoint an administrator, and that appointment was invalid. 3 The matter was decided in a proceedings in relation to the subject company, and there is a decision of Santow J on 2 August 1999. His Honour makes it clear in that judgment that the administration was invalid, and he specifically concluded that the relation back day in respect of this corporation was 12 June 1996. That flowed because of the combined application of the definition of "relation back day" in s9, and the provision of s513A. There is no doubt that 12 June 1996 was the date that the proceedings for winding up commenced. 4 As a result, under s588FF(3), an application of the present type may only be made (a) within three years after the relation back day, or (b) within such longer period as the Court orders on an application under this paragraph made by the liquidator within those three years. 5 There is no suggestion that any application to extend the period was made within the three year period referred to in the section. That three year period expired on 12 June 1999, and these proceedings were commenced on 1 September 2000. 6 A submission was made that perhaps one might by virtue of s1322(4) extend the time. That matter, of course, depends upon consideration of the terms of the section, and the decision in David Grant & Co Pty Limited v Westpac Banking Corporation (1995) 184 CLR 265. In that case the High Court held that no application under s1322 could apply in respect of an application under s459G. 7 In Starr & Ors v National Australia Bank Limited (1930) ACSR 538 Rolfe J considered the precise question now before me, and he decided that given the similarity of the two sections, that the same constraints as applied to David Grant should apply to an application under s588FF. 8 In these circumstances and in accordance with the reasons of his Honour Rolfe J, it seems to me clear that the present application cannot succeed. I am mindful of the authorities which suggest that it is only in exceptional circumstances that there should be summary judgment on a limitation point, but in the present case, it seems to me, that the matter is beyond argument and is covered by authorities of a single judge of this Court. 9 In those circumstances I dismiss the application and order the plaintiff to pay the defendant's costs. 10 There has been an application for indemnity costs, and that is on the basis that the present proceedings have been maintained when it had no real prospect of success. The argument before me did not show any cases which were contrary to the National Australia Bank case which I have referred to in my judgment. 11 I think in these cases, once a motion has been filed, there ought to be some period during which consideration should be given to whether it should proceed. I think probably that point should have been obtained by yesterday, and in the circumstances I order that the costs will be on a party party basis, except for today, which will be on an indemnity basis.