Access Holdings (SA) Pty Ltd (Receivers and Managers Appointed) v Pergoleto

[2013] FCA 434

FEDERAL COURT OF AUSTRALIA

Access Holdings (SA) Pty Ltd (Receivers and Managers Appointed) v Pergoleto [2013] FCA 434

Citation:		Access Holdings (SA) Pty Ltd (Receivers and Managers Appointed) v Pergoleto [2013] FCA 434
Parties:		ACCESS HOLDINGS (SA) PTY LTD (RECEIVERS AND MANAGERS APPOINTED) v FRANCESCO PERGOLETO
File number:		SAD 87 of 2013
Judge:		BESANKO J
Date of judgment:		6 May 2013
Date of hearing:	6 May 2013
Date of last submissions:	6 May 2013
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	6
Counsel for the Plaintiff:	Mr B Roberts
Solicitor for the Plaintiff:	Thomsons Lawyers
Counsel for the Defendant:	Mr S McNamara
Solicitor for the Defendant:	Commercial & General Law

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 87 of 2013

BETWEEN:	ACCESS HOLDINGS (SA) PTY LTD (RECEIVERS AND MANAGERS APPOINTED) Plaintiff
AND:	FRANCESCO PERGOLETO Defendant

JUDGE:	BESANKO J
DATE OF ORDER:	6 MAY 2013
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application of the defendant to vary the orders made on 1 and 3 May 2013 respectively is dismissed.

2.The question of costs is reserved.

3.Liberty to apply.

4.The directions hearing be adjourned to Friday 17 May 2013 at 9.00am.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 87 of 2013

BETWEEN:	ACCESS HOLDINGS (SA) PTY LTD (RECEIVERS AND MANAGERS APPOINTED) Plaintiff
AND:	FRANCESCO PERGOLETO Defendant

JUDGE:	BESANKO J
DATE:	6 MAY 2013
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application by the defendant, Francesco Pergoleto, to vary an order which I made on 1 May 2013 and which I varied on 3 May 2013. The order is order number 7 in the orders made on 1 May 2013. It requires the defendant to deliver up certain assets, consisting mainly of items of plant and equipment. The evidence today makes it clear that the only items of plant and equipment which remain in dispute are items of plant and equipment presently on a property at Lot 100 Whitford Road, Hillbank, South Australia, which I will refer to as “the Hillbank site”.

2. Up until the time of the defendant’s submissions in reply, the defendant’s argument was as follows. First, the defendant conceded that the plaintiff had a right to immediate possession of the plant and equipment on the Hillbank site, and which was subject to the secured creditor’s charge.  Secondly, the defendant nevertheless contended that the plant and equipment at the Hillbank site was being used pursuant to a contract with an entity known as Urban Land Group Proprietary Limited, and that it was in the interests of the plaintiff and of the secured creditor that that use of the plant and equipment continue until the defendant could make alternative arrangements.  The period required was said to be a period of seven to fourteen days.  It was submitted that the secured creditor would receive, in effect, hiring fees in discharge of the plaintiff’s indebtedness to it during this time.

3. The above might be a basis for exercising the discretion in favour of varying the order for delivery up by allowing the further seven to fourteen days, if the benefits to the plaintiff and to the secured creditor in doing so, were clear.  However, on the evidence, they are not.  The entity hiring the plant and equipment and other contracting party for work on the Hillbank site is said to be an entity known as 5 Star Civil Group Pty Ltd.  However, that company was incorporated on 19 March 2013, which was well after the contract entered into with Urban Land Group Pty Ltd. In fact, the entity identified as the other party to the contract with Urban Land Group Pty Ltd is Access Civil Pty Ltd. The evidence before me indicates that this is a non-existent company.  The defendant is neither a director or shareholder of 5 Star Civil Group Pty Ltd, although a person living at an address the defendant has given is the director and shareholder of the company.  The contract with Urban Land Group Pty Ltd contains a clause prohibiting assignment without the consent of the other contracting party.  There is no evidence that consent has been given by the Urban Land Group Pty Ltd. Furthermore, the terms of the so-called hiring agreement are not in writing and are unclear on the evidence.

4. I reject the first basis upon which the defendant seeks a variation of the order.

5. The second basis was put by the defendant’s counsel in reply.  It was, as I understood the argument, that the plaintiff and receivers and managers were bound by a monthly hiring contract between the plaintiff and 5 Star Civil Group Pty Ltd.  Counsel for the plaintiff put a number of arguments against that basis for a variation of the order. I only need to deal with one of them.  I agree with the submission made by counsel for the plaintiff that the evidence does not establish, to a sufficient level of certainty and clarity, that there is a hiring arrangement between the plaintiff and 5 Star Civil Group Pty Ltd which is from month to month.  I refer to the observations I have already made in these reasons and to the observations I made during argument, and to the way in which the evidence is set out in paragraphs 4, 5, 8, 11, 12 and 13 of Mr Pergoleto’s affidavit sworn on 6 May 2013.

6. For these reasons, I reject the defendant’s application for a further variation to the order that I first made on 1 May 2013. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:       10 May 2013