Case: Equuscorp Pty Ltd v Perpetual Trustees WA Ltd (1997) 25 ACSR 675
Outcome: referred to
G &amp; J Gears conceded that it had not satisfied the statutory demand within the period for compliance allowed by the registrar, but it contended that the court could extend the time for compliance because it had made an application for an extension before the time fixed by the registrar had passed. In support of this contention, it referred to Equuscorp Pty Ltd v Perpetual Trustees WA Ltd (1997) 25 ACSR 675 (" Equuscorp ") at 701 per French, Kiefel and Sundberg JJ. G &amp; J Gears contended that the court should exercise the discretion it had in its favour, amongst other reasons, because the review would otherwise be nugatory. 36 Further, G &amp; J Gears also relied on s 459F(2)(a)(ii) of the Corporations Act in support of its submission that the Court could and should make an order extending the time for compliance with the demand, notwithstanding that the time allowed under the registrar's order had passed. It argued that s 459F(2)(a)(ii) meant that the period for compliance with the statutory demand did not terminate until "7 days after the application under section 459G is finally determined or otherwise disposed of" and that the application was not finally determined by the registrar's decision. Counsel for G &amp; J Gears contended that there was no final determination until after the review of the registrar's decision had occurred. 37 G &amp; J Gears did not dispute the amount of its indebtedness to Brobo as found by the registrar. It contended, however, that the statutory demand should be set aside because the company had offsetting claims within the meaning of s 459H of the Corporations Act . These claims were: (1) a trademark infringement claim in respect of the Little Rock mark; (2) a claim that Brobo had unlawfully induced Rockcrusher-USA to breach its sole distribution agreement with G &amp; J Gears; (3) a breach of contract claim; and (4) a claim that Brobo had unlawfully converted G &amp; J Gears' designs, patterns and tools to its own use. The trademark infringement claim was the subject of Shirley's affidavit of 2 September 2005, whilst the other claims were not raised prior to Davis's affidavit of 8 November 2005 and were dealt with substantially in an affidavit sworn by Shirley on 6 February 2006. The affidavit of 6 February 2006 was not, of course, before the Registrar. Further, only the trademark infringement claim was raised as a ground in the company's initial affidavit filed pursuant to s 459G(3) of the Corporations Act . That is, the only basis for an offsetting claim initially disclosed in the application made by G &amp; J Gears under s 459G was the alleged wrongful sale by Brobo of two containers of G &amp; J Gears' goods and the consequential breach of the Little Rock mark. 48 Upon G &amp; J Gears' application, the Court would have had power to extend time further at any time after the registrar made the order extending time until the expiry of that time. It would have been open to the company to have made such an application before the end of this period had there been grounds, but it did not do so: see Equuscorp at 701 per French, Kiefel and Sundberg JJ; Graywinter Management Pty Ltd v Deputy Commissioner of Taxation (1996) 22 ACSR 636 at 638 per Finn J; Shakespeares Pie Co Australia Pty Ltd v Multipye Pty Ltd [2005] NSWSC 1201 (" Shakespeare Pie ") at [7] per Barrett J; Australian Beverage Distributors Pty Ltd v Cranswick Premium Wines Pty Ltd [2004] NSWSC 877 (" Australian Beverage Distributors ") at [12] per Barrett J; and Livestock Traders at 54. Once the time for compliance has passed, however, the Court has no such power.