Diploma Construction Pty Ltd v Precast Prestressed Buildings Perth Pty Ltd [2004] FCA 1505

Diploma Construction Pty Ltd v Precast Prestressed Buildings Perth Pty Ltd [2004] FCA 1505

The Court found the failure to lodge the notice of charge within time was due to inadvertence and delay in obtaining payment of stamp duty, both amounting to sufficient cause under s 266(4) of the Corporations Act. It was just and expedient to extend the period to the actual date of lodgment, and to grant liberty to apply to protect the position of unsecured creditors and liquidators.

Parties
Applicant: Diploma Construction Pty Ltd; Respondent: Precast Prestressed Buildings Perth Pty Ltd (Administrators Appointed)
Jurisdiction
Australia
Judgment Date
05 November 2004
Procedural Posture
Corporations – Application for Extension of Time to Lodge Notice of Charge / Ex Parte Application; Decision at First Instance
Outcome
Application granted
Legal Topics
Extension of Time for Lodgment of Charge, Inadvertent Delay, Insolvency Administration
Corporations Law Extension of Time for Lodgment of Charge Inadvertent Delay Insolvency Administration

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Parties

Diploma Construction Pty Ltd

Applicant

Precast Prestressed Buildings Perth Pty Ltd (Administrators Appointed)

Respondent

Procedural Posture

Corporations – Application for Extension of Time to Lodge Notice of Charge / Ex Parte Application; Decision at First Instance

Legal Issues

  1. 1 Whether the period for lodging notice of deed of charge should be extended under s 266(4) of the Corporations Act 2001 (Cth) due to inadvertence and/or other sufficient cause
  2. 2 Whether it is just and expedient to make such an order

Ratio Decidendi

The Court found the failure to lodge the notice of charge within time was due to inadvertence and delay in obtaining payment of stamp duty, both amounting to sufficient cause under s 266(4) of the Corporations Act. It was just and expedient to extend the period to the actual date of lodgment, and to grant liberty to apply to protect the position of unsecured creditors and liquidators.

Court Disposition

Application granted

Orders

  • The period for lodging with the Australian Securities and Investments Commission notice of the Deed of Charge granted by the respondent to the applicant dated 23 April 2004 be extended to 3 August 2004.
  • The administrators or any liquidator or unsecured creditor have liberty to apply to discharge or vary the order in the event of the appointment of a liquidator in any winding up which commences within six months of the date of lodgement of the Deed of Charge.