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  • Unreported Judgment

Re Jackaroo Agencies Pty Ltd

 

[2005] QSC 333

Reported at [2006] 1 Qd R 332

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Re Jackaroo Agencies Pty Ltd [2005] QSC 333

PARTIES:

IN THE MATTER OF JACKAROO AGENCIES PTY LTD (ACN 064 544 261)

PETER GEORGE CRAWFORD
(applicant)
v
TAKKU INVESTMENTS PTY LTD
ACN 105 668 960 AS TRUSTEE FOR UEDA FAMILY TRUST
(respondent)

FILE NO/S:

BS 8261 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

31 October 2005

JUDGE:

White J

ORDER:

1.  Substitute Jackaroo Agencies Pty Ltd as applicant in place of Peter George Crawford in proceedings BS 8261 of 2005.

2.  Adjourn the application pursuant to s 459G of the Corporations Act 2001 to a date to be fixed.

3.  The company Jackaroo Agencies Pty Ltd pay the respondent’s costs thrown away by the adjournment to be assessed on the standard basis.

CATCHWORDS:

CORPORATIONS – WINDING UP – WINDING UP BY THE COURT – GROUNDS FOR WINDING UP – INSOLVENCY – APPLICATION TO SET ASIDE DEMAND – EXTENSION OF TIME AND GENERALLY – Where application to set aside statutory demand under s459G of the Corporations Act – whether made within 21 days – where wrong party named in application – whether amendment to substitute parties under the Uniform Civil Procedure Rules may be made outside the 21 day limitation period – where genuine error about the identity of the applicant – where the respondent does not and could not claim to be misled

Civil Proceedings Act 2005 (NSW), s 64

Commonwealth Constitution, s 51(xxxvii)

Corporations Act 2001 (Cth), s 459G

Uniform Civil Procedure Rules 1999 (Qld), r 69, r 375, r 376

Judiciary Act 1903 (Cth), s 79, s 80

Supreme Court of Queensland Act 1991 (Qld), s 81

Trade Practices Act 1974 (Cth), s 82

A & M Short Pty Ltd v Prestige Residential Marketing Pty Ltd [2005] 54 ACSR 760, cited

David Grant & Co Ltd v Westpac Banking Corporation (1994-1995) 184 CLR 265, cited

Ramsey v McElroy [2004] 1 Qd R 667, cited

COUNSEL:

Mr S Pate (solicitor) for the applicant

Mr D Kent for the respondent

SOLICITORS:

graham boydon fill e-lawyers for the applicant

McLaughlin Ivey Lawyers for the respondent

  1. Takku Investments Pty Ltd as trustee for the Ueda Family Trust (“Takku Investments”) served a statutory demand upon Jackaroo Agencies Pty Ltd (“Jackaroo”) for the amount of $28,750 on 15 September 2005. This amount is claimed as the amount owing on an unsecured loan advanced by Cocoon Pty Limited (“Cocoon”), a company registered in Japan, to Jackaroo dated 22 October 2003, the principle and interest of which was $172,500.
  1. This balance of $28,750 owing under the loan was assigned by Cocoon to Takku Investments on 9 July 2005 and the assignment notified to Jackaroo.
  1. An application to set aside the statutory demand pursuant to s 459G of the Corporations Act 2001 (Cth) was filed on 4 October 2005 on the ground that Jackaroo was not indebted as alleged to Cocoon and hence not to Takku. 
  1. That application came on for hearing on 31 October 2005. Mr S Pate, solicitor for Jackaroo, sought an adjournment without any written material on two grounds, namely, that Jackaroo’s accountant, who could elaborate about the non-indebtedness of Jackaroo to Cocoon, was out of Australia until 8 November 2005, and, that Mr and Mrs Ueda and Mr Akimoto, the principal of Cocoon, were being investigated by the Burleigh Criminal Investigation Branch about allegations of fraud concerning this transaction. Mr and Mrs Ueda are directors of Takku Investments. Mr Hiroyuki Akimoto is a director of Cocoon and a friend of Mr and Mrs Ueda. Mr and Mrs Ueda and Mr Crawford, the sole director of Jackaroo, through their respective companies had been in business together at least since 2003 but this relationship appears to have broken down by the end of 2004. The material includes lengthy correspondence between them attempting to reach a commercial settlement of their differences which included discussions about the Cocoon loan.
  1. Mr D Kent for Takku Investments opposed the adjournment because, he submitted, there was nothing to be gained by it as the material revealed that Jackaroo did borrow money from Cocoon and Mr Crawford knew of the loan, authorised it and participated in its repayment. There could therefore be no scope to argue the existence of a genuine dispute.
  1. The more telling point was that the application was not made by Jackaroo within 21 days as required by s 459G(2) of the Corporations Act, or at all.  That submission arises because the application to set aside made pursuant to s 459G is made in the name of “Peter George Crawford” and not Jackaroo.  Mr Pate has sought to amend the application to substitute the company for Mr Crawford. 
  1. I adjourned to consider this submission having indicated that otherwise I would grant the adjournment since the correspondence between the parties suggested there was no acknowledgment of indebtedness to Cocoon by Jackaroo and the allegations of fraud were serious ones but that Jackaroo should pay the costs of the adjournment since there was no notice of the application to adjourn.
  1. Thereafter I became aware of the reported decision of Young CJ in Eq in A & M Short Pty Ltd v Prestige Residential Marketing Pty Ltd [2005] NSWSC 872, reported in 54 ACSR 760 (25 October 2005) and requested submissions from Mr Kent and Mr Pate in respect of the issues raised in that case.
  1. The title on the application to set aside the statutory demand is

“IN THE MATTER OF JACKAROO AGENCIES PTY LTD

(ACN 064 544 261)

Applicant:PETER GEORGE CRAWFORD

Respondent:TAKKU INVESTMENTS PTY LTD

ACN 105 668 960 AS TRUSTEE FOR                                           UEDA FAMILY TRUST”

  1. Under the heading “A. Details of Interlocutory application” appear the following

“This application is made under s.459G of the Corporations Act 2001.  On the facts stated in the supporting affidavit, the applicant Peter George Crawford applies for the following relief:

  1. That the respondent’s statutory demand for payment of a non-judgment debt in the sum of Twenty Eight Thousand Seven Hundred Fifty Dollars ($28,750.00) served by the respondent on the applicant on 15th September 2005 be set aside pursuant to section 459G of the Corporations Act 2001 (Cth).
  1. An order that the respondent pays the applicants costs of this Application on an indemnity basis.
  1. Such further and/or other orders and/or directions as shall to this Honourable Court seem fit.” 
  1. The supporting affidavit of Mr Crawford carries the same title. In paragraphs 1 and 2 he deposes to being the sole director and secretary of Jackaroo and other relevant information. He deposes that he is authorised by the company to make the application and in paragraph 3 deposes

“On 15th September 2005 the respondent Takku Investments Pty Ltd served the company with a Creditor’s Statutory Demand for Payment of Debt (the “Statutory Demand”) together with an affidavit of Kylie Ann Ueda.  These documents were delivered to the company’s registered office C/- BD Hickey & Co, Level 1, 10 James Street, Burleigh Heads in the State of Queensland.”

The balance of the affidavit relates to contesting Jackaroo’s indebtedness to Cocoon. 

  1. David Grant & Co Ltd v Westpac Banking Corporation (1994-1995) 184 CLR 265 held that the requirement that an application to set aside a statutory demand within 21 days after the demand is served imposed an essential condition as to time on the right to apply to set aside such a demand.  Here the application to set aside was made within 21 days.  The issue for decision is whether the Uniform Civil Procedure Rules relating to amendment may operate to amend an application brought under s 459G when the application to amend is outside the 21 days, that is, outside the limitation period. 
  1. Mr Justice Young in A & M Short held that there was no tension between the two regimes since in the relevant NSW provisions (s 64(4) of the Civil Proceedings Act 2005(NSW)), where there has been a misnomer, the action is treated as if it originally named the substituted person, at [35], 765.  In that case the defendant made a statutory demand against A & M Short Investments Pty Ltd (ACN 075 258 258) for a named amount.  Within 21 days the solicitor for the debtor filed an application to set aside the statutory demand pursuant to s 459G of the Corporations Act.  The applying plaintiff was described as A & M Short Pty Ltd (ACN 732 172 251).  There was no such company with that name nor with that ACN number.  The supporting affidavit by the director of the company repeated the error.  In due course it was realised that the correct name of the applying plaintiff was A & M Short Investments Pty Ltd (ACN 075 258 258).  The application to substitute the correct applying party after 21 days was resisted. 
  1. Mr Kent has submitted that the present is not a misnomer case but a case of substituting one party for another and, accordingly, there being no mistake in the name of the party, the amendment ought not to be permitted as it lies outside the limitation period and would be futile.
  1. What must be considered is the relationship between s 459G of the Corporations Act, s 81 of the Supreme Court of Queensland Act 1991 and the Uniform Civil Procedure Rules (“UCPR”) relating to substituting a party in r 69(1) and (2)(iii) and/or rr 375 and 376(1) and (2) dealing with amendment generally.
  1. Section 81 of the Supreme Court of Queensland Act 1991 provides

“(1) This section applies to an amendment of a claim, anything written on a claim, pleadings, an application or another document in a proceeding.

(2) The court may order an amendment to be made, or grant leave to a party to make an amendment, even though—

(a) the amendment will include or substitute a cause of action or add a new party; or

(b) the cause of action included or substituted arose after the proceeding was started; or

(c) a relevant period of limitation, current when the proceeding was started, has ended.

(3) Despite subsection (2), the rules of court may limit the circumstances in which amendments may be made.

(4) This section applies despite the Limitation of Actions Act 1974.”

  1. Chapter 3 of the UCPR concerns parties to a proceeding.  Rule 69 provides relevantly

“(1) The court may at any stage of a proceeding order that—

(a) a person who has been improperly or unnecessarily included as a party, or who has ceased to be an appropriate or necessary party, be removed from the proceeding; or

(b) any of the following persons be included as a party—

(i)a person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding;

...

(2) However, the court must not include or substitute a party after the end of a limitation period unless 1 of the following applies—

(a) the new party is a necessary party to the proceeding because—

...

(iii)the proceeding was started in or against the name of the wrong person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court’s intention to make the order ...”

  1. By r 74(5) for limitation period purposes “a proceeding by or against a new party is taken to have started when the original proceeding started, unless the court orders otherwise.”
  1. The general power of amendment is in Chapter 10 Part 3 of the UCPR.  By r 375(3) which is subject to r 376

“If there is a misnomer of a party, the court must allow or direct the amendment necessary to correct the misnomer.”

Rule 376 provides

“(1) This rule applies in relation to an application, in a proceeding, for leave to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding started, has ended.

(2) The Court may give leave to make an amendment correcting the name of a party, even if the effect of the amendment is to substitute a new party, only if –

(a) The court considered it appropriate; and

(b)The Court is satisfied that the mistake ought to be corrected –

(i)was a genuine mistake;

(ii) was not misleading or likely to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.

...”

  1. It is not contended by Mr Pate for Jackaroo that this is a misnomer case. The appropriate rule is in Chapter 3 and in particular r 69(1)(a) and (b)(i) and (2)(a)(iii) which is set out above. Jackaroo fulfils the requirements of those provisions. Since by r 75(5) the proceeding by the new party, Jackaroo, is taken to have started when the original proceeding started there is no limitation issue, unless the court orders otherwise. The mistake was a genuine error about the identity of the applicant, either an editorial mistake or a misunderstanding of who was the proper applicant, and the respondent does not and could not claim to be misled. Accordingly there is no reason why the amendment should not take effect from the time when the application to set aside the statutory demand was originally filed.
  1. It remains to consider whether s 459G of the Corporations Law precludes the operation of these provisions of the UCPR.  By virtue of a reference of power from the States to the Commonwealth under s 51(xxxvii) of the Constitution the Corporations Act 2001 is Commonwealth legislation unlike the cooperative legislative regime prevailing hitherto.  Accordingly, when hearing an application under s 459G to set aside a statutory demand this court is now exercising federal jurisdiction so that s 79 of the Judiciary Act 1903 (Cth) applies.  It provides, relevantly,

“The laws of each state ... including the laws relating to procedure ... shall, except as otherwise provided by ... the laws of the Commonwealth, be binding on all Courts exercising Federal jurisdiction in that State ... in all cases to which they are applicable.”

Section 80 of the Judiciary Act provides relevantly that so far as the laws of the Commonwealth are insufficient to carry them into effect, the common law in Australia as modified by the statute law in force in the State in which the court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the laws of the Commonwealth,  govern all courts exercising federal jurisdiction in the exercise of their jurisdiction in civil matters.

  1. The question then is, has the Corporations Act in s 459G “otherwise provided” so as to exclude the application of s 81 of the Supreme Court of Queensland Act 1991 and the provisions of the Uniform Civil Procedure Rules?  I discussed this question extensively in Ramsey v McElroy [2004] 1 Qd R 667 at 675-8 in relation to s 82(2) of the Trade Practices Act and it is unnecessary to repeat that discussion here.  Part 5.4 of the Corporations Act is concerned with winding-up in insolvency and does not provide for matters of practice and procedure.  Schedule 1A of the UCPR contains rules for proceedings under the Corporations Act.  By r 1.3

“(1) Unless the court otherwise orders, these rules apply to a proceeding in the court under the Corporations Act ...

(2) The other rules of the court apply, so far as they are relevant and not inconsistent with these rules, to a proceeding in the court under the Corporations Act ...

...”

  1. There are no general rules relating to amendment of proceedings and the like. While there are particular rules relating to winding-up on insolvency there is no particular rule about amendment or substitution of parties in that part. The conclusion, therefore, is that the Corporations Act and rules made thereunder relating to corporations have not “otherwise provided” for matters relating to amendment either within or beyond the limitation period prescribed in s 459G.  The UCPR and s 81 of the Supreme Court of Queensland Act 1991 are not irreconcilable with the Commonwealth law and therefore become surrogate Commonwealth law for the proceedings brought under the Corporations Law.  Accordingly, there is no restraint upon the application of rr 69 and 74(5) to this proceeding. 
  1. Accordingly the order is that “Jackaroo Agencies Pty Ltd” be substituted for “Peter George Crawford” in proceedings BS 8261 of 2005.
  1. As indicated at the hearing, the application to set aside the statutory demand is adjourned to a date to be fixed and Jackaroo Agencies Pty Ltd, must pay the costs thrown away by the adjournment to be assessed on the standard basis.
Close

Editorial Notes

  • Published Case Name:

    Jackaroo Agencies Pty Ltd, Re

  • Shortened Case Name:

    Re Jackaroo Agencies Pty Ltd

  • Reported Citation:

    [2006] 1 Qd R 332

  • MNC:

    [2005] QSC 333

  • Court:

    QSC

  • Judge(s):

    White J

  • Date:

    11 Nov 2005

Litigation History

Event Citation or File Date Notes
Primary Judgment [2006] 1 Qd R 332 11 Nov 2005 -

Appeal Status

No Status