Expile Pty Ltd v Jabb's Excavations Pty Ltd [2002] NSWSC 851

New South Wales Supreme Court

CITATION : Expile Pty Ltd v Jabb's Excavations Pty Ltd [2002] NSWSC 851 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 1887/02 HEARING DATE(S) : 12 September 2002 JUDGMENT DATE : 12 September 2002

PARTIES : Expile Pty Ltd (P) Jabb's Excavations Pty Limited (D) JUDGMENT OF : Hamilton J

COUNSEL : S D Epstein SC (P) R W Tregenza (D) SOLICITORS : Baron & Associates (P) Cadmus Lawyers (D) CATCHWORDS : CORPORATIONS [340] - Supervision, regulation and correction - Irregularities in proceedings - Extension of time - For winding up application - Meaning of special circumstances - Public interest. LEGISLATION CITED : Corporations Act 2001 (Cth) ss 459R(1) & (2), 459S Clarks of Hove Ltd v Bankers' Union [1978] 1 WLR 1207 Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 Lyon v Wilcox [1994] 3 NZLR 422 CASES CITED : Peninsula Watchdog Group (Inc) v Minister of Energy [1996] 2 NZLR 529 Re Hunter (A Bankrupt), Ex Parte Exclusive English Imports Limited (In Liquidation) [1954] NZLR 747 Re Norman (1886) 16 QBD 673 Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217 Westpac Banking Corporation v E & W Jury Pty Ltd (1998) 16 ACLC 547 DECISION : Extension of time granted; vacation of fixture for hearing refused.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 12 SEPTEMBER 2002

1887/02 EXPILE PTY LIMITED v JABB'S EXCAVATIONS PTY LIMITED JUDGMENT 1 HIS HONOUR: There are three applications before the Court in these proceedings, which are fixed for hearing on Friday next, 20 September 2002, before Barrett J. The proceedings were commenced by the filing of an originating process attaching a notice of demand of 14 March 2002. The six month period stipulated in s 459R(1) of the Corporations Act 2001 (Cth) ("the CA") as the period within which an application for a company to be wound up in insolvency is to be determined therefore expires on 14 September 2002 and therefore falls between today and next Friday, when the matter is fixed for hearing. A chronology of various events in the history of the case has been prepared and has been allowed into evidence on the basis that, although in bulk it was prepared by the plaintiff, it is not suggested on the defendant's part that the matters stated in it are not factual. 2 The first of the applications with which I have to deal is an application by the plaintiff that the period within which the application to wind up must be determined should be extended under s 459R(2) of the CA for a short period, which would permit the matter to be heard and determined by Barrett J. That application is made on an interlocutory process filed on 10 September 2002. The second application is made on the defendant's notice of motion filed on 3 September 2002 and is for an order that, if I grant an extension of time, without which the winding up application will not continue to be current, then I should vacate the hearing date before Barrett J and send the matter to the Registrar to be given a fresh hearing date. 3 For the application under s 459R(2) to be granted the Court must be satisfied that special circumstances justify the extension. There has been a deal of litigation concerning the incidence of s 459R, but that litigation has largely concerned whether or not, where the order is not made within the prescribed period, an order can be made rectifying the situation under the slip rule, if the circumstances of the case justify the use of the slip rule: see Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 (Full Court); Westpac Banking Corporation v E & W Jury Pty Ltd (1998) 16 ACLC 547 (Federal Court, Emmett J). 4 These applications have been argued before me today and obviously require immediate determination. I have not had a great deal of time in which to look for relevant authority under the section. Mr Tregenza, of counsel for the defendant, has usefully given me some of the authorities relating to the slip rule, to which I have referred above. However, the efforts of counsel during the day and what endeavours I have been able to make have not found consideration by the Courts as to what falls or does not fall within the concept of special circumstances as used in this section. There are oblique reflections on that subject matter in the Full Court decision in Elyard supra in the judgment of Lindgren J at 400. There is certainly indication that the shortness of the extension applied for may be taken into account in assessing whether there are special circumstances, as the willingness of the other party to have the time extended. But there is no consideration of what definition, if any, should be placed upon the expression "special circumstances" in this section. 5 The word "special" is an ordinary English word. The relevant definition of it as used in the present context appears to me to be that given in the Macquarie Dictionary (3rd ed, 1997) as follows: "6 Distinguished or different from what is ordinary or usual: a special occasion "