Bitar Pty Ltd v Hebbel Constructions Pty Ltd [2019] NSWCA 38

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bitar Pty Ltd v Hebbel Constructions Pty Ltd [2019] NSWCA 38 Hearing dates: 20 February 2019 Date of orders: 20 February 2019 Decision date: 05 March 2019 Before: Gleeson JA at [1] McCallum JA at [47] Decision: (1) Extend the time for the service of the summons seeking leave to appeal to 27 August 2018.

(2) Summons seeking leave to appeal dismissed with costs.

(3) Applicant to pay the Receiver's costs of and incidental to the application for leave to appeal on an indemnity basis. Catchwords: APPEAL – Leave to appeal from interlocutory decision not to discharge court appointed receiver – Where complaints of delay by the receiver – Whether error of principle in approach to removal of receiver – Whether manifest injustice in refusing to remove the receiver – Where futility of an appeal given receivership almost complete – Where other remedies available

CORPORATIONS – Receivers and managers – Appointment by court – Application for removal of receiver – Conduct of receivership – Powers – Where receiver makes commercial judgments as to timing and staging of sale of assets Legislation Cited: Home Building Act 1989 (NSW) Supreme Court Act 1970 (NSW), s 101(2)(e) Uniform Civil Procedure Rules 2005 (NSW), rr 26.6, 51.4, 51.10 Cases Cited: ACN 151 726 224 Pty Ltd (in liq) formerly Ridley Capital Holdings Pty Ltd [2016] NSWSC 1801 Domino Hire Pty Ltd v Pioneer Park Pty Ltd [2003] NSWSC 496 House v The King (1936) 55 CLR 499; [1936] HCA 40 MLW Investments Pty Ltd v Tacsum Pty Ltd [2006] NSWSC 1256 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55]; [2007] NSWCA 369 Category: Principal judgment Parties: Bitar Pty Limited (Applicant) Hebbel Constructions Pty Limited (First Respondent) Daniel Frisken (Second Respondent) Representation: Counsel: P. E. King (Applicant) P. Wiggins (Solicitor) (First Respondent) S. Golledge (Second Respondent)