Supreme Court New South Wales Medium Neutral Citation: Dowdon Civil Contractors Pty Ltd v Workers Compensation Nominal Insurer; Hansen Yuncken Pty Ltd v Workers Compensation Nominal Insurer [2013] NSWSC 304 Hearing dates: 18 February 2013 Decision date: 18 February 2013 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Proceedings transferred to the Common Law Division, to be listed with proceedings 2013/24950 Catchwords: CORPORATIONS - winding up - leave to proceed - leave to claim directly against insurer under (NSW) Law Reform (Miscellaneous Provisions) Act 1946, s 6 Legislation Cited: (Cth) Corporations Act 2001, s 601AG (NSW) Law Reform (Miscellaneous Provisions) Act 1946, s 6 Category: Interlocutory applications Parties: Dowdon Civil Contractors Pty Ltd (2013/ 28972 Plaintiff) Hansen Yuncken Pty Ltd (2013/ 38808 Plaintiff) Workers Compensation Nominal Insurer (Defendant) Representation: Counsel: Ms Alexander (Solicitor - Dowdon Civil Contractors) Mr RB Harris (Solicitor - Hansen Yuncken Pty Ltd) Solicitors: Curwoods Lawyers (Dowdon Civil Contractors) Lee and Lyons Lawyers (Hansen Yuncken Pty Ltd) Turks Legal (Workers Compensation Nominal Insurer) File Number(s): 13/ 28972 13/ 38808 Judgment 1HIS HONOUR: These reasons are given and orders made in each of matters 2013/28972, Dowdon Civil Contractors Pty Ltd v Workers Compensation Nominal Insurer and 2013/38808, Hansen Yuncken Pty Ltd v Workers Compensation Nominal Insurer. 2Each of the applicants is a defendant in proceedings which were commenced in the District Court of New South Wales (No 2011/291295) and have been removed to the Common Law Division of this Court (No 2013/24950). Hansen Yuncken was apparently the builder of a construction site. Dowdon was apparently a contractor to Hansen Yuncken. Dowdon in turn engaged Sporty's Transport Pty Ltd, of which the plaintiff in the Common Law proceedings, Mr Mark Milton Mahlberg, was an employee. Mr Mahlberg was injured in an accident on 13 September 2008. He sued Hansen Yuncken for damages on 24 May 2012. 3Dowdon was joined as a defendant in the District Court proceedings on 24 May 2012, although not so identified in the proceedings filed in this case. 4Sporty's Transport Pty Ltd was wound up on 12 October 2011. There is some suggestion that this Court, on 30 March 2012, granted leave to Mr Mahlberg to proceed against Sporty's, his employer, as a company in liquidation, but it has not been possible at this stage to verify whether that is so. Dowdon and Hansen Yuncken wish to claim contribution from Sporty's - or more accurately from Workers Compensation Nominal Insurer, as insurer of Sporty's. 5Each applicant has filed a summons claiming the following relief: 1. Leave be granted, nunc pro tunc, to the Applicant pursuant to s 601AG of the Corporations Act 2001 to issue a Cross-Claim against the Workers Compensation Nominal Insurer in respect of proceedings commenced in the District Court of New South Wales at Sydney, file no 2011/291255, and continue with those proceedings. 2. In the alternative, that leave be granted, nunc pro tunc, pursuant to s 601AG of the Corporations Act 2001 that the Applicant be at liberty to file a Cross-Claim in accordance with s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 naming the Workers Compensation Nominal Insurer as a Cross-Defendant. 3. That each party bear its own costs of this Application. 4. Such further orders as the Court deems fit. 6Pursuant to (Cth) Corporations Act 2001, s 601AG, a person may recover from the insurer of a deregistered company an amount that was payable to the company under the insurance contract if the company had a liability to the person, and the insurance contract covered that liability immediately before registration. 7A number of observations need to be made about that provision. First, it refers to a company that is deregistered. A company in liquidation is not thereby deregistered; deregistration is a subsequent process that follows completion of the liquidation. The company search in evidence indicates that Sporty's remains under external administration and has not yet been deregistered. Accordingly, it would seem that s 601AG is not, at least at present, applicable. 8Secondly, if the section were applicable, there is no requirement to obtain leave before invoking it. The section gives a right to proceed directly against the insurer of a deregistered company. Accordingly, the first claim in each originating process, for "leave" pursuant to s 601AG to issue a cross-claim against the Workers Compensation Nominal Insurer, is misconceived. 9The second claim for relief is expressed as a claim for leave "nunc pro tunc" pursuant to s 601AG of the (Cth) Corporations Act 2001 to file a cross-claim pursuant to (NSW) Law Reform (Miscellaneous Provisions) Act 1946, s 6. So far as the evidence discloses, no such cross-claim has yet been filed so the words "nunc pro tunc" are misconceived. Further, if what is sought is leave under Law Reform (Miscellaneous Provisions) Act, s 6(4), then the references to Corporations Act, s 601AG are misconceived. 10It seems to me that what the applicants probably want is leave pursuant to Law Reform (Miscellaneous Provisions) Act, s 6(4), to commence proceedings to enforce the statutory charge created by that section against the relevant workers compensation insurer. Such leave is to be obtained, not from the Corporations Court, but from the court in which it is proposed to commence those proceedings. So far as appears at the present, the appropriate jurisdiction to consider that application would be the Common Law Division of this court, in which the substantive proceedings appear to be. 11I observe that there is no requirement to obtain leave under s 6(4) if the provisions of subsection (2) apply. Section 6(2) provides: If, on the happening of the event giving rise to any claim for damages or compensation as aforesaid, the insured (being a corporation) is being wound up, or if any subsequent winding-up of the insured (being a corporation) is deemed to have commenced not later than the happening of that event, the provisions of subsection (1) shall apply notwithstanding the winding-up. 12The insured in this case, being Sporty's, is being wound up. So far as the evidence discloses, the winding up commenced on 12 October 2011. The event giving rise to the claim for damages occurred on 13 September 2008, which was before the insured was wound up and before the deemed commencement of the winding up. Accordingly, subsection (2) does not apply, and leave is required. 13Although the insurer has indicated that it consents to being joined as a defendant, it is not at all clear that it consents to a grant of leave under s 6(4), which invokes additional considerations (such as whether the insurer is entitled to disclaim). In any event, it seems to me that, if the matter is to be pursued, it should be pursued in conjunction with the substantive proceedings, as the proviso in s 6(4) contemplates. 14I therefore order that the proceedings be transferred to the Common Law Division, to be listed in connection with proceedings 2013/ 24950. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2013