McElligott v Boyce
[2012] QSC 189
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- McElligott v Boyce[2012] QSC 189
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McElligott v Boyce[2012] QSC 189
McElligott v Boyce[2012] QSC 189
SUPREME COURT OF QUEENSLAND
CITATION: | McElligott v Boyce & Ors [2012] QSC 189 |
PARTIES: | LORAIN RONDA McELLIGOTT v PETER GERARD BOYCE AND ALAN WILLIAM CLARKE AND SIMONE ELIZABETH PEARCE AND GEOFFREY JOHN BARR AND BME UNIT TRUST – THE FIRM BUTLER McDERMOTT LAWYERS |
FILE NO/S: | 5711/12 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 17 July 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 June 2012 |
JUDGE: | Chief Justice de Jersey |
ORDER: |
|
CATCHWORDS: | Procedure – Judgments and orders – Amending, varying and setting aside – where applicant seeks to set aside under r 667(2) of the Uniform Civil Procedure Rules an earlier order of the court for the winding up of a company on the basis of allegations of fraud – where earlier appeals against winding up order were dismissed – where the allegation of fraud was considered in the appeal – where the applicant is a bankrupt – whether the applicant has standing to bring the application – whether the applicant’s contentions are based on newly-discovered material. Bankruptcy Act 1966 (Cth), s 58 Corporations Act 2001 (Cth), s 471A Uniform Civil Procedure Rules 1999, r 667 Rock Bottom Fashion Market Pty Ltd v HR & CE Griffiths Pty Ltd (2000) 2 Qd R 573, cited Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, cited |
COUNSEL: | The applicant appeared on her own behalf M O Jones for the respondent |
SOLICITORS: | The applicant appeared on her own behalf Butler McDermott Lawyers for the respondent |
- By an originating application filed on 28 June 2012, the applicant Lorain Ronda McElligott seeks an order setting aside the order made by Daubney J on 14 October 2009 that the company Westwood Enterprises (Qld) Pty Ltd be wound up. The specified ground of the application is that the winding up order “was obtained by fraud”. In support of the application, Ms McElligott relied on her affidavit filed on 28 June 2012 and other material presented at the hearing, which I marked “A”.
- In her affidavit, the applicant says that her allegation of fraud is based on alleged perjury of the first respondent Mr Boyce. The winding up was based on the company’s failure to comply with a statutory demand. The amount of the demand represented unpaid fees for services rendered by Mr Boyce’s firm of solicitors. In his affidavit supporting the notice of demand, Mr Boyce swore: “I believe that there is no genuine dispute about the existence or amount of the debt.” The applicant contends that he thereby committed perjury, in the context of the “misleading and deceptive conduct and misrepresentation” referred to in paragraph 14 of her affidavit, including “omitting or removing or leaving off” the warning statement which should appear on a statutory demand. (I mention that in particular because it was a matter of focus at the oral hearing before me.)
- The respondents challenge the applicant’s standing to bring her application. Because the company is in liquidation, it falls to the liquidators to exercise its rights (s 471A(1) Corporations Act 2001), and the interest in setting aside a winding up order is primarily at least an interest of the company in liquidation. A former director has no right to bring proceedings in the company’s name without the liquidators’, or the court’s, approval: Rock Bottom Fashion Market Pty Ltd v HR & CE Griffiths Pty Ltd (2000) 2 Qd R 573.
- In addition, the applicant is an undischarged bankrupt. When the sequestration order was made on 25 June 2012, the applicant’s property vested in the Official Trustee (s 58(1)(a) Bankruptcy Act 1966), meaning – allowing for the definition of “property” – that the applicant lost any locus standi she may otherwise have had to bring a proceeding such as this (Cummings v Claremont Petroleum NL (1996) 185 CLR 124).
- At an earlier stage, the applicant did have standing to apply for an order terminating or staying the winding up, in her capacity as a contributory of the company (s 482 Corporations Act 2001), and the applicant in fact made such an application: an application dismissed on 17 July 2010.
- The applicant also previously sought to appeal against the winding up order. Her application for an extension of time within which to do so was refused by the Court of Appeal on 3 June 2011. The applicant then applied to the High Court of Australia for special leave to appeal against the decision of the Court of Appeal. The High Court refused that leave on 10 May 2012, observing that no reason had been shown to doubt the correctness of the decision of the Court of Appeal.
- The allegation of perjury which the applicant seeks to ventilate in the present application was raised before the Court of Appeal, which rejected it. See para 29 of the reasons for judgment of Muir JA. The question of the significance of the omission from the statutory demand was ventilated before Peter Lyons J during a hearing before him on 28 July 2010.
- If, contrary to my earlier expressed conclusion, the applicant does have standing to bring this application, an application presumably founded on Rule 667(2)(b) of the Uniform Civil Procedure Rules (which provides that the court may at any time set aside an order obtained by fraud), then the applicant could now succeed only if she advances significant, newly-discovered material (Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 538-9). The material on which the applicant now seeks to rely has not recently been ascertained for the first time. It has indeed been the subject of binding judicial determinations adverse to the applicant.
- Ms McElligott submitted there was need for a “separate proceeding” where fraud is alleged, and she referred me, subsequently to the hearing, to material published on the Bar Association’s “Hearsay” page, but obviously that does not mean that an allegation of fraud, by itself, means the established order must be put into abeyance while the allegation is explored. (I do not know whether the applicant notified the respondents of that further material, but because it could not have been influential, any such omission would not matter.)
- In the result, therefore, there are a number of reasons why the application cannot succeed. The application should be dismissed. There is no reason why costs should not follow that event. With reference to a submission made by Ms McElligott, there is no public interest consideration militating against that.
- There will be orders:
- that the originating application filed on 28 June 2012 be dismissed;
- that the applicant pay the respondents’ costs, to be assessed on the standard basis.