David Grant & Co Pty Ltd (Receiver Appointed) v Westpac Banking Corporation

REASONS FOR JUDGMENT THE COURT: On 29 October 1997 the Court heard the present application for leave to appeal, including argument as to whether, if leave were granted, the appeal should be granted. At the conclusion of argument we announced that leave would be granted but that the appeal would be dismissed for reasons which the Court would later publish. We now set out the reasons why, in our view, this course should be adopted. Vista Commercial Construction Pty Limited ("Vista") seeks leave to appeal from a judgment of a judge of this Court, Branson J, refusing to it an extension of time to comply with a statutory demand in the amount of $179,743.70 served upon it on 27 June 1997 by the Deputy Commissioner of Taxation ("the Commissioner"), the respondent to the application for leave. The demand relates to unpaid prescribed payments tax and penalties owing by Vista in respect of deductions required to be made for the period 1 September 1996 to 31 January 1997. Vista purported to institute an appeal in the Court, rather than applying for leave. However, it is clear that the judgment refusing an extension of time for compliance was interlocutory, in the sense that it did not decide finally the rights of the parties to any issue: cf Brouwer v Titan Corporation Ltd (unreported, Full Fed Ct, 7 March 1997). Accordingly leave to appeal was required. The appeal should, therefore be treated as an application for leave. There was no demurrer to this course by either party. Vista applied to the Court pursuant to s 459G (1) of the Corporations Law ("the Law") to set aside the demand on 17 July 1997 on the grounds that it was defective, that it would "carry" substantial injustice to Vista and that Vista was solvent. In support there was filed an initial and rather uninformative affidavit, followed later by an affidavit by a director, Mr Tong, in which it is said that the company had debtors totalling $742,000 (it is not stated whether the debts were payable on demand or in the future), had instructed its lawyers to commence proceedings against one of the debtors, that it had on foot a number of current projects said to be valued at $414,232.00, cash retentions on completed projects of $32,552 (nothing is said about potential liabilities on those projects, if any), had been guaranteed payment by way of bank guarantees held on certain projects, totalling $104,448, and was tendering for a number of other projects. Mr Tong swore that Vista should receive some $200,000 within three months and $250,000 from the legal proceedings which Vista had instructed its lawyers to commence, and concluded by saying that Vista was solvent and that it sought an extension of time to comply with the demand until 11 December 1997. There is no indication in the affidavit whether there were any other creditors and if so the extent of them, although it would necessarily follow from the fact that Vista was engaged in a number of building operations that it would, at the least have continuing liabilities arising from those projects. A subsequent affidavit was filed by Mr Tong on 25 September 1997. He deposed in it that Vista had debts totalling $500,000. The make up of that figure is not given; particularly, it is not known to what extent that figure includes creditors other than the Commissioner. Evidence on affidavit from an officer of the Commissioner indicated that the Commissioner's debt had grown to $186,964.20 and that in addition, as at that date, there was a further $264,676 owing to the Commissioner for prescribed payment deductions not remitted and $45,670.90 for group tax not remitted in periods subsequent to January 1997. In other words, the Commissioner's debt was close on the $500,000 to which Mr Tong referred, before any other creditors were taken into account. Mr Tong deposed further that there were arbitration proceedings on foot in respect of the debtor in respect of which it was said in the earlier affidavit that legal proceedings were to be undertaken. He said that he anticipated that $414,232 would be received on or before 30 November and that in respect of a project for which a tender had been accepted an amount of $165,000 would be received on or before 31 October 1997. Nothing is said as to the costs of completing the work. It was on the basis of this evidence that the applications to set aside the statutory demand and to extend the time for compliance with it came before a Registrar of the Court. The Registrar refused, it would seem, to set aside the statutory demand (it is not clear from the papers whether there was any contest at that stage as to that issue) and refused also to extend the time for compliance with the demand. Vista sought review of the Registrar's decisions accordingly. The Review is a hearing de novo. It came before Branson J for hearing on 26 September 1997. Before her Honour it was accepted that the amount shown in the statutory demand was due and owing and that there was no longer a genuine dispute between the parties as to the amount of the debt or as to the existence of any offsetting claim. Any contention that the demand should be set aside because of the solvency of Vista was, it would seem abandoned, and with respect properly so. From the transcript of argument it would seem that it was argued for the Commissioner that her Honour had no power to extend the time for compliance with the statutory demand once it was determined that the application to set the demand aside was dismissed. In the alternative it was argued that her Honour should not extend the time for compliance. For Vista it was argued that there existed under s 459F(2)(a)(i) power in the Court, independent of whether there remained on foot proceedings to set aside the statutory demand, to extend the time for compliance and that in all the circumstances the time should be extended. There was no cross-examination of any witness. In an ex tempore judgment her Honour, after dismissing the application brought under s 459G of the Law to set aside the demand said: "On the application for an extension of time to comply with the demand, it is put on behalf of the applicant that if an extension of a period of only a matter of months is granted, then the likelihood is that the applicant will be able to meet the respondent's demand. In my view, a reading of the Corporations Law as a whole, and particularly ss459F, 459G and 459H, suggest that an extension of time ought only to be granted pursuant to s459F (2)(a)(i) in the circumstances identified in s459H, or possibly, s459J. It is conceded in this case that there is no valid ground for the setting aside of the statutory demand. In those circumstances, I am not satisfied that any extension of time to comply with the demand should be granted under 459F (2)(a)(i). The period for compliance with a statutory demand, in view of the concession made on behalf of the respondent, is thus that time provided by section 459F(2)(a)(ii); that is, a period ending seven days after today, being the day when the section 459G application is disposed of." Earlier in the judgment her Honour mentioned that she had doubted whether the application to set aside the statutory demand had complied with s 459 because of the inadequacy of the affidavit which had been filed with the application. However, her Honour noted that the respondent specifically conceded the validity of the application and accordingly her Honour did not proceed to consider the matter. We mention this only because on the application for leave counsel for the Commissioner sought to agitate on the appeal the question which had been conceded. If leave is to be ultimately granted it should exclude leave to argue the validity of the proceedings under s 459. The Commissioner having conceded the matter in the trial should not now be entitled to leave to agitate the matter on appeal. On behalf of Vista it was submitted that her Honour had refused to extend the time for compliance because of a mistaken view that she had no power, and that accordingly leave to appeal should be granted and the appeal allowed, the matter of the manner of exercise of the power being remitted to her Honour for further consideration. For the Commissioner it was submitted first, that her Honour's judgment involved no more than an exercise of discretion having regard to all the circumstances of the case and that accordingly leave to appeal should be refused. Alternatively, it was submitted both that her Honour was correct in concluding that she had no power to extend the time for compliance, if that was the basis of her Honour's judgment, and that if there was power then the Court should determine the matter of discretion for itself or otherwise that the present was not an appropriate case for the exercise of the power to extend time, with the consequence that if leave to appeal were granted the appeal should be dismissed. Accordingly three interrelated questions arise for consideration: · Whether her Honour refused to extend time as a matter of discretion or because she was of the view that in the circumstances where the application to set aside the statutory demand had been determined there was no power to extend the time for compliance. · If her Honour decided the case below on the basis that the power to extend time for compliance was spent once the application to set aside the demand had been determined adversely to Vista, whether her Honour erred in law in so deciding. · If there was power to extend the time for compliance notwithstanding the dismissal of the application to set aside the statutory demand, should the Court remit the matter to her Honour to exercise the power to extend the time for compliance. THE JUDGMENT BELOW - POWER OR DISCRETION? It is perhaps true that there is an element of ambiguity in the judgment appealed from. However, it must be borne in mind that the judgment was given ex tempore and was perhaps not expressed with quite the same care with which it might have been had it been reserved. However, it must also be said that the only suggestion that her Honour approached the matter as one of discretion is to be found in the use of the word "should" in the passage cited above. But that must be read both by reference to the immediately preceding paragraph of the judgment and the words which lead in to the conclusion that the time to comply should not be extended. The emphasis on the concession that there was no valid ground to set aside the statutory demand as founding her Honour's conclusion makes it tolerably clear that her Honour took the view that the power to extend time for compliance was spent once the application to set aside the statutory demand was determined. This leaves, in the event leave to appeal is granted, the question whether dismissal of proceedings to set aside the statutory demand necessitated the conclusion that there was no power to extend time for compliance. This is a question on which single judges of the Court have expressed somewhat differing views. It is clearly a question upon which leave to appeal should be granted and accordingly leave is granted, but limited to arguing the second and third questions set out earlier in these reasons, but not the question of compliance with s 459 to which reference has earlier been made. WAS THERE POWER TO EXTEND TIME? To answer this question it is necessary first to set out the relevant statutory provisions in their context and then to consider both the history of these provisions and the parliamentary policy embodied in them. It is only by so doing that it is possible to construe the provisions. Section 459E of the Law permits a person to serve a demand requiring payment or the securing or compounding of a debt that is, or debts that are, owed to that person within a period of 21 days from service. Section 459F then provides: "If, as at the end of the period for compliance with a statutory demand, the demand is still in effect and the company has not complied with it, the company is taken to fail to comply with the demand at the end of that period. (2) The period for compliance with a statutory demand is: (a) if the company applies in accordance with section 459G for an order setting aside the demand: (i) if, on hearing the application under section 459G, or on an application by the company under this paragraph, the Court makes an order that extends the period for compliance with the demand - the period specified in the order, or in the last such order, as the case requires as the period for such compliance; or (ii) otherwise - the period beginning on the day when the demand is served and ending 7 days after the application under section 459G is finally determined or otherwise disposed of; or (b) otherwise - 21 days after the demand is served." Section 459G then provides for an application to be made to the Court to set aside a statutory demand. There is, and deliberately so, a set time limit in which this application can be made, 21 days. That is to say the application must be made within the same time which is open for compliance with the demand. The relationship between the two times can be seen in the passage quoted later from the Law Reform Commission Report No 45, General Insolvency Inquiry ("the Harmer Report"). That time can not be extended: David Grant & Co Pty Ltd (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265. It is a consequence of there being an application to the Court to set aside the demand, as is clear from a consideration of the terms of s 459F above, that the time for compliance is, by force of statute extended, unless any order is made pursuant to s 459F(2)(a), to the day seven days after the application to set aside the statutory demand is finally determined or disposed of. The grounds upon which an application to set aside a statutory demand may be made are set out in ss 459H and 459J. Stated briefly they are, in accordance with s 459H, whether there is a genuine dispute about the existence or amount of the debt (but only to the extent to which the debt is disputed); whether the company served has an offsetting claim (but only to the extent that offsetting claim is netted off against the amount of the demand) and subject in either case to the necessity that the demand in the result be for a particular minimum amount. In accordance with s 459J the grounds for setting aside the statutory demand are either a defect in the demand which causes substantial injustice or where "there is some other reason why the demand should be set aside". Unless the Court acts under ss 459H or 459J it is required to dismiss the application to set aside the demand: s 459L. The consequence of failure to comply with the statutory demand becomes evident on a perusal of the scheme of Pt 5.4 of Chapter 5 of the Law. An application to the Court to wind up a company may be brought on the ground of insolvency: s 459P. The Court in such an application is required to presume that the company is insolvent if, in the three months before the application to the Court is made, the company failed to comply with the statutory demand: s 459C(2). That presumption operates except so far as the contrary is proved: s 459C(3). Further, a company subject to an application that it be wound up on the basis of insolvency to be proved by failure to comply with the statutory demand is not without the leave of the Court permitted to oppose the application on a ground that it relied on or could have relied on in proceedings to set aside the demand: s 459S. Leave may only be granted if the ground is material to proving solvency of the company: s 459S(2). The legislative scheme derives from the recommendations contained in the Harmer Report to which reference has already been made. Paragraph 150 of that report after detailing the grounds which the Commission recommended might be availed of in an application to set aside a demand continued at 73-4: "If an application to set aside a demand is dismissed, it was proposed that the court should be required to make an order authorising the creditor to make an application for the winding up of the company either forthwith or on or after a date specified in the order. This would enable a company which considers it has an appropriate answer to the statutory demand to make an application for it to be set aside, but to give it a reasonable time to pay in the event that the application is unsuccessful." Some appreciation of what the last sentence in the passage cited means may be gleaned by the draft section (WU8) which the Commission recommended be enacted: "(1) The Court may, on application by the company, set aside a statutory demand. (2) The application must- (a) be made before the end of the time for compliance with the demand; (b) supported by affidavit; and (c) be served with the affidavit on the creditor within 21 days after service of the demand. (3) On the filing of the application, the time for compliance with the demand is, by force of this subsection, extended by 7 days or by such longer period as the Court on application of the company or on the hearing of the application under subsection (1) determines." The general substance of the recommendation and draft section were adopted, although the language which Parliament chose did not follow precisely that recommended by the Harmer Report. The Explanatory Memorandum which accompanied the Corporate Law Reform Bill 1992, and which acknowledged the Harmer Report, contained nothing to suggest that the recommendations so far as they are presently relevant were not accepted in principle. Referring to the now s 459F the Memorandum states in par 684 (at 137): "459F(2) provides for periods within which the demand must be complied with. Generally, the period will be 21 days after the demand is served. Where, however, a company applies in accordance with proposed section 459G for an order setting aside the demand, the period is that specified in a Court order extending the period for compliance or, otherwise, the period ending 7 days after the application to set aside the statutory demand is finally determined or otherwise disposed of." There is little to be served by setting out the Second Reading Speech delivered by the then Honourable the Attorney-General as it sheds no light at all on the proper interpretation of s 459F. One aspect of the legislative scheme to which, as yet, no reference has been made is that the recipient of a statutory demand as to which there are no valid grounds to set it aside is given no right to apply to a Court for an extension of the time for compliance. Where the debt is owed there is no offsetting claim, the demand is not defective and there is no other reason why the demand must be set aside, the legislature has decreed that there will be a presumption of insolvency unless the debt is, within 21 days of service of the demand, paid, secured or compounded. However, where the recipient of a demand bona fide believes there are grounds for setting aside the demand, and in consequence commences proceedings in the Court to that end, the time for compliance is automatically extended until, at the earliest, seven days after the application to set aside the demand has been finally determined or dealt with. To bring proceedings to set aside a demand where there was no bona fide argument that the demand should be set aside, but merely to obtain the statutory extension of time would involve an abuse of process, for the application would be made for an improper purpose: Williams v Spautz (1992) 174 CLR 509 at 518-522, 532-537. Section 459F(2)(a) confers upon the Court power to extend the time of seven days granted by the statute once an application to set aside a demand has been instituted under s 459G. That power may, as the section itself stipulates, be exercised either "on" the hearing of the s 459G application or "on an application by the company", by implication being an application not made at the hearing of the s 459G application. In the context the word "hearing" must mean that time during which the court embarks upon the hearing of evidence and expiring with the entry of an order of the Court. So, an application could be made before the hearing, at, for example, an interlocutory stage. However, there is no reason as a matter of language, or for that matter as a matter of policy, why an application could not be made at a time after the hearing, for example, after an appeal against a decision at first instance on the application to set aside the statutory demand had been decided adversely to an applicant. In our view there is no reason why there should not be power in an appropriate case to extend the time for compliance after the Court had determined to dismiss an application to set aside a demand, and indeed every reason to construe the section as permitting such a course, provided that it is borne in mind that the purpose behind permitting an extension of time is not as such to permit the creditor to obtain time to pay the demand beyond that initially contemplated in the legislation of 21 days, but in the context that the creditor has instituted proceedings to set aside the demand on one or other of the grounds in ss 459H or 459J and that this application has in the result terminated adversely to the creditor. Examples of circumstances may readily be suggested where application to extend the time for compliance once a decision had been reached adverse to the applicant on the proceedings to set aside the demand should be made. One example discussed in argument was where the company could show that had it not embarked upon the proceedings to set aside the demand it could have complied with the demand, within the 21 days but the institution of the proceedings had brought about a change of circumstances such that the company now required a reasonable period, greater than the statutory period of 7 days to comply. So too, application to extend time for compliance may well be necessary on the conclusion of an appeal if it could be shown that in the circumstances then existing the seven days which the legislature has set as the prima facie time for compliance was then unreasonable. These examples are not in any way intended to be exhaustive. Nor should these examples be taken as suggesting that application may not in an appropriate case be brought even after the hearing or any appeal therefrom had concluded. For example, if an order had been made at the hearing to extend the time for compliance by some period and by reason of circumstances perhaps beyond the control of the company some short extension was required, it might well in the circumstances be appropriate to exercise the power to grant a further extension. Finally, it may be noted that the submission that there is no power, after the hearing of the application to set aside has concluded to extend time leaves little if any work to be done by the words "or on an application by the company" in s 459F(2)(a). Because, by statute there is an automatic extension of time for compliance until 7 days have elapsed from the time the proceedings to set aside have been "finally determined", there is little or no need for an application to extend time being made until the actual hearing is concluded. So although the words italicised would no doubt confer power on the Court on the application of a company to extend the time for compliance at a time before the hearing, it would not be often that that power would be exercised. What is more likely is that the italicised words were deliberately inserted to permit the application to be made after the final hearing, for the purpose referred to above, but prior to the expiration of the time then applicable for compliance. Such case law as there is supports the view that an application for extension of time could be made, either at the hearing or indeed thereafter in an appropriate case. In Grant Gummow J, with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed, said (at 277): "Further, it is significant that the scheme established by the new Pt 5.4 itself contains specific provisions conferring upon the court an express power to extend time. First, the court may make an order extending the period for compliance with the statutory demand. If the company applies 'in accordance with section 459G' to set aside the demand, then an order extending the time for compliance may be made. The order may be made either on the hearing of the application under s459G or on an application by the company under par (a) of s459G(2). Such an extension may itself be extended on further application (par (a))." On the next page his Honour returned to s 459F. His Honour there said: "The effect of s459F is that the company is taken to fail to comply if, at the end of the period for compliance, the demand is still in effect and the company has not complied with it. The term 'period for compliance' is defined in pars (a) and (b) of s 459F(2). On the other hand, if an order has been sought setting aside the demand, the period may be a longer one, as detailed in sub-pars (i) and (ii) of par (a). However, this will only be so if, in the terms of par (a), the company itself 'applies in accordance with section 459G'." Although the present question was not involved in his Honour's deliberations, the comments quoted above do not suggest that his Honour was of the view that the application to set aside the demand still had to be on foot at the time the application for extension of time is brought. The only limitation which his Honour suggests, and it is a limitation inherent in the words of the section itself is that the company applies in accordance with s 459G. As noted earlier there have been a number of judgments of single judges of this court which have considered generally the question of extending time for compliance after the hearing of the application to set aside has concluded. In the first of these, Livestock Traders International Pty Ltd v BUI (1996) 22 ACSR 51, Jenkinson J refused to extend the time for compliance applied for after the s 459G proceedings had been completed, but on the ground that at the time the application was made to his Honour (it was, actually an application for review of a Registrar's decision refusing to extend time) the time for compliance had passed. That there could be no utility in extending the time for compliance with a demand, once the time for compliance had passed, and no jurisdiction to do so would seem self evident. But his Honour did not suggest that he would have lacked jurisdiction to extend the time had the time for compliance not by then expired. One matter noted by his Honour points to the need for jurisdiction to extend the time for compliance after the application under s 459G has been determined. The seven day period which is set by s 459F(2)(a) runs from the time of final determination or final disposition of the s 459G application. The words "final determination" may, or may not cover the period of 21 days permitted for the lodging of an appeal under O 71, sub-r 7(3) of the Federal Court Rules. Indeed they probably do, but there is no time provided in the Rules, specifically in relation to s 459G matters, for lodging an application for review of a decision of a Registrar in the event that the s 459G application is dealt with by a Registrar so that it is difficult to read in any particular period of time as necessarily being involved in the concept of "final determination" to take into account the time required for commencing an application to review the Registrar's decision. For this reason it would be necessary after a Registrar had dismissed a s 459 application before the expiration of seven days from the Registrar's decision to apply to extend the time for compliance if the circumstances suggested such an application was appropriate. In Graywinter Properties Pty Ltd v Dyer (1996) 12 ACLC 302 Ryan J again held that his Honour had no power to extend the time for compliance on the ground that by the time of the hearing the time for compliance had expired, notwithstanding that the application to extend time was made on the last day for compliance. However his Honour considered an argument that there was no power to extend time once the s 459G proceedings had been concluded and rejected it. His Honour said (at 305-6): "I am not persuaded that the power given to the Court to extend time for compliance with a statutory demand is solely a grant in aid of the application to set aside the statutory demand as I held in McLean v Australia and New Zealand Banking Group Limited (1993) 42 FCR 300 ... that the power to extend time for compliance with a bankruptcy notice was purely to facilitate the hearing and determination by the Court of a challenge to the bankruptcy notice. Under the Corporations Law, as apparently occurred in the present case, an extension of time may be granted after the Court has determined not to set aside the statutory demand because, eg, the Court considers that it would be unreasonable to require compliance within the seven days which would otherwise apply by force of s 459F(2)(a)(ii). Nevertheless for the reasons explained below, any order made on a second or subsequent application for an extension of time must be made before compliance with the notice has become impossible by expiration of either the 21 days stipulated by s 459F(2)(b) or the period as extended in one or other of the ways specified in s 459F(2)(a)." Finn J in Graywinter Management Pty Ltd v Commissioner of Taxation (1996) 22 ACSR 636 actually extended the time for compliance in the circumstances of that case after the s 459G proceedings had been disposed of. However, in so doing his Honour expressed doubt on the question of jurisdiction, and particularly the question whether it was necessary that s 459G proceedings still be on foot as a foundation of the Court's jurisdiction to extend time. Nevertheless, his Honour decided to follow the reasoning of both Jenkinson and Ryan JJ in the two decisions just referred to. However, it is one thing to say that there exists jurisdiction to extend the time for compliance and another to say that the exercise of that jurisdiction is at large.