Arogen v Leighton [2013] NSWSC 1099

Supreme Court New South Wales

Medium Neutral Citation: Arogen v Leighton [2013] NSWSC 1099 Hearing dates: 18/07/2013 Decision date: 19 July 2013 Jurisdiction: Equity Division - Technology and Construction List Before: McDougall J Decision: Time for service of evidence to be extended on conditions. Declaration, that plaintiff's cross-claim against defendant in other proceedings, to be made if plaintiff complies with orders to be made. Catchwords: CORPORATIONS - ORDERS & DIRECTIONS - application for declaration that cross-claim does not stand dismissed - where court orders that proceedings will stand dismissed if cross-claimant fails to file and serve evidence by a particular date - where cross-claimant fails to file and serve evidence - where cross-claimant goes into administration - whether appointment of voluntary administrator has the effect of staying court orders - whether s440D of the Act applies to cross-claim brought by a company in administration - orders not stayed by appointment of administrator - Corporations Act 2001 (Cth) s440D

CORPORATIONS - INTERPRETATION - Corporations Act 2001 (Cth) s440D - meaning of "in relation to" - meaning of "a proceeding" - meaning of "property"

PRACTICE & PROCEDURE - ORDERS & DIRECTIONS - NSW Supreme Court - NSW Supreme Court Rules - application for declaration that cross-claim does not stand dismissed - where court orders that proceedings will stand dismissed if cross-claimant fails to file and serve evidence by a particular date - where cross-claimant fails to file and serve evidence - whether court can extend time for compliance with order - court may extend time for compliance unless order dismissing cross-claim precludes it - whether court should exercise discretion to extend the time for compliance - relevant principles - Uniform Civil Procedure Rules 2005 (NSW) ss 1.12; 36.16; 56 Legislation Cited: Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Supreme Court Rules 1970 (NSW) Cases Cited: Australian Securities Commission v Marlborough Coal Mines (1993) 177 CLR 485 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Bailey v Marinoff (1971) 125 CLR 529 Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381 Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 Foxcroft v The Ink Group Pty Ltd (1994) 15 ACSR 203 Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd (2011) 285 ALR 207 Leighton Contractors v Arogen [2012] NSWSC 1323 Leighton v Arogen [2012] NSWSC 1370 Mead Corporation v Carbonless Papers (Australia) Pty Ltd [2002] WASC 268 MG Corrosion Consultants Pty Ltd v Gilmour (2012) 88 ACSR 170 Travelex Limited v Commissioner of Taxation (2010) 241 CLR 510 Uvanna Pty Limited v Tsang Chi Ming (1997) 15 ACLC 443 Category: Procedural and other rulings Parties: Arogen Pty Limited (Administrator Appointed) (Plaintiff) Leighton Contractors Pty Limited (Defendant) Representation: Counsel: N A Nicholls / R Bianchi (Plaintiff) M G Rudge SC (Defendant) Solicitors: Moray & Agnew Lawyers (Plaintiff) Gadens Lawyers (Defendant) File Number(s): 2013/223127