Hebbel Constructions Pty Limited v Bitar Pty Limited and Anor [2018] NSWSC 1089

Supreme Court New South Wales

Medium Neutral Citation: Hebbel Constructions Pty Limited v Bitar Pty Limited and Anor [2018] NSWSC 1089 Hearing dates: 19 June 2018 Decision date: 19 June 2018 Jurisdiction: Equity - Corporations List Before: Black J Decision: Liberty to apply is not properly invoked; substantive hearing of the application will not proceed. Catchwords: PRACTICE AND PROCEDURE – application to exercise liberty to apply pursuant to previous order made – where basis to exercise the liberty to apply has not been established – whether liberty to apply is properly invoked. Legislation Cited: - Uniform Civil Procedure Rules 2005 (NSW) r 26.6 Category: Procedural and other rulings Parties: Hebbel Constructions Pty Limited (Plaintiff) Bitar Pty Limited (First Defendant) Hebbel Constructions Pty Ltd & Bitar Pty Ltd (Second Defendant) Representation: Counsel: P Wiggins (Solicitor – Plaintiff) P E King (First Defendant) S Golledge (Court Receiver)

Solicitors: Paramonte Legal (Plaintiff) Priest Legal (First Defendant) Yates Beaggi (Court Receiver) File Number(s): 2014/269117 (012)

JUDGMENT - EX TEMPORE (Revised 19 June 2018)

Whether liberty to restore is properly exercised 1. On 10 May 2018, I heard a Notice of Motion filed on 24 April 2018 by the First Defendant, Bitar Pty Ltd ("Bitar"), which applied for an order under r 26.6 of the Uniform Civil Procedure Rules 2005 (NSW) for the discharge of a Court-appointed receiver of the assets of a partnership of Hebbel Constructions Pty Ltd ("Hebbel") and Bitar and the shares in Bitar Hebbel Constructions Pty Ltd. I dismissed that application, for the reasons set out in my reasons for judgment delivered on 25 May 2018 ([2018] NSWSC 758). In doing so, I observed at paragraph 31 that: "I am not persuaded that, at present, this matter [namely the occupation of unit 11 by Ms Anna Taouk] warrants the removal of the receiver, alone or together with other matters. … I will, however, receive liberty to Bitar to apply, since there may well be cause for complaint, and possibly cause for the receiver's removal, if the present position is permitted to continue for any substantial period without completion of a sale of unit 11 to Ms Taouk, or if she does not promptly complete that sale, to a third party." [emphasis added] 1. It will immediately be noted that my observation that the position as to Ms Taouk's occupancy of unit 11 did not warrant the removal of the receiver, alone or together with other matters, was made less than a month ago, by the judgment delivered on 25 May 2018. 2. By a further judgment delivered on 8 June 2018, I set out the orders which would follow from the judgment and dealt with the question of costs. I gave effect to my observation in paragraph 31 of the judgment by making an order that: "The parties have liberty to apply on two business days' notice in respect of any further complaint arising in respect of any substantial delay by the receiver in completing the sale of unit 11, whether to Ms Anna Taouk or to any third party." 1. It will be noted that that liberty was conditioned by two matters, namely that there exists a further complaint and that it arises in respect of any substantial delay by the receiver in completing the sale of unit 11. The further judgment was delivered, and the consequential orders were made on 8 June 2018, less than two weeks ago. 2. By email dated 14 June 2018, some four business days after I had delivered judgment in respect of orders, and made orders, the solicitors for Bitar referred to the liberty to apply and advised that they were instructed to exercise liberty pursuant to the order and seek to have the matter listed before me. By email sent on the same day, my Associate, at my request, raised the question how there could be a "substantial delay" in the six days since I had made orders on 8 June 2018, but nonetheless indicated dates on which the matter could be listed. If it had otherwise escaped the attention of Bitar and its legal adviser that a substantial delay might not be established by the six days that had passed since orders were made, my Associate's email should have drawn their attention to that question. Nonetheless, Bitar persisted with the listing. 3. Today, Mr King, who appears for Bitar, indicates the matters which he seeks to address, which would re-agitate issues which were dealt with in my earlier judgment. When I invited Mr King to indicate how a substantial delay by the receiver in completing the sale of unit 11 had arisen in the short period since the matter was listed before me and determined by me, he referred to the length of time since the hearing, now six weeks; the length of time since my judgment, now less than a month; and the length of time since my orders, now less than two weeks. He also referred to the length of time since the receiver's first appointment, which I had addressed in my earlier judgment. He embroidered that submission with gratuitous references to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, which has no apparent relationship to this application. 4. It seems to me that, in the circumstances, the basis for Bitar to exercise the liberty to apply has not been established. That liberty to apply was directed, as my earlier judgment and the orders made clear, to any further substantial delay that may arise by the receiver in the sale of unit 11. It did not and does not permit Bitar to re-agitate the matters that I have determined, albeit on an interlocutory basis, absent any change in circumstances. A substantial delay in respect of the sale of unit 11 has not arisen since my earlier judgment; to put that proposition another way, the receiver could not reasonably be expected to have completed a sale of the property in the several weeks that have passed since I delivered that judgment. The liberty to apply would protect Bitar's interests, if a substantial delay in the sale of the property arose, after the time of delivery of my judgment. However, where that has not yet occurred, this application is not properly made, so far as it attempts to re-agitate matters dealt with in the earlier judgment. 5. In these circumstances, it seems to me that the liberty to apply is not properly invoked, and I should not proceed to a substantive hearing of the application.