In the matter of Bestcare Foods Ltd (subject to a Deed of Company Arrangement) [2014] NSWSC 1831

In the matter of Bestcare Foods Ltd (subject to a Deed of Company Arrangement) [2014] NSWSC 1831

The Court granted leave to reopen because the further evidence showed that the earlier judgment had proceeded on a factual misapprehension: the initial $10,000 plus GST was drawn only after approval by the specified persons, and the balance was not drawn until after agreed short minutes and consent orders authorised it. Although the evidence could have been led earlier, the issue had not been given significant prominence in the Plaintiff's case, there was no deliberate decision not to call it, the misapprehension was not solely attributable to the former Deed Administrators' default or neglect, the further evidence was limited and caused no relevant prejudice, and it would very likely...

Jurisdiction
Australia
Judgment Date
18 December 2014
Procedural Posture
Interlocutory Application in Equity Division Corporations List / Application Under Uniform Civil Procedure Rules 2005 (nsw) R 36.16(3 A) to Recall, Set Aside or Vary Judgment and for Leave to Reopen After Reasons for Judgment Were Delivered But Orders Not Entered
Outcome
Leave granted to reopen to rely on further evidence; judgment varied; order for review of the remuneration the subject of the 3 March 2011 resolution vacated; parties given leave to seek a date for costs argument if no agreement is reached.
Legal Topics
['reopening a Case After Judgment' 'variation of Judgment or Orders' 'misapprehension of Facts' "review of Deed Administrators' Remuneration" 'corporations Act 2001 (cth) S 449 E' 'uniform Civil Procedure Rules 2005 (nsw) R 36.16']
['civil Procedure' 'corporations Law'] ['reopening a Case After Judgment' 'variation of Judgment or Orders' 'misapprehension of Facts' "review of Deed Administrators' Remuneration" 'corporations Act 2001 (cth) S 449 E' 'uniform Civil Procedure Rules 2005 (nsw) R 36.16']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Interlocutory Application in Equity Division Corporations List / Application Under Uniform Civil Procedure Rules 2005 (nsw) R 36.16(3 A) to Recall, Set Aside or Vary Judgment and for Leave to Reopen After Reasons for Judgment Were Delivered But Orders Not Entered

Legal Issues

  1. 1 ['Whether the Court should grant the Defendants leave to reopen their case to rely on further evidence after judgment had been delivered.' 'Whether the earlier judgment proceeded on a misapprehension of fact concerning approval for drawing remuneration approved by creditors on 3 March 2011.' 'Whether the judgment should be varied so that the remuneration the subject of the 3 March 2011 resolution should not be reviewed under Corporations Act 2001 (Cth) s 449E.']

Ratio Decidendi

The Court granted leave to reopen because the further evidence showed that the earlier judgment had proceeded on a factual misapprehension: the initial $10,000 plus GST was drawn only after approval by the specified persons, and the balance was not drawn until after agreed short minutes and consent orders authorised it. Although the evidence could have been led earlier, the issue had not been given significant prominence in the Plaintiff's case, there was no deliberate decision not to call it, the misapprehension was not solely attributable to the former Deed Administrators' default or neglect, the further evidence was limited and caused no relevant prejudice, and it would very likely...

Court Disposition

Leave granted to reopen to rely on further evidence; judgment varied; order for review of the remuneration the subject of the 3 March 2011 resolution vacated; parties given leave to seek a date for costs argument if no agreement is reached.

Orders

  • ['To the extent necessary, grant leave to the Defendants to reopen their case to rely upon the further affidavit of Mr David Ingram dated 27 November 2014 and the email marked Ex A1 in the application heard before me on 1 December 2014.' 'Vary the judgment delivered on 19 November 2014 to the effect that the...