Alpine Accommodation Nominees v Chow
[2010] NSWSC 768
•9 July 2010
CITATION: Alpine Accommodation Nominees v Chow & Anor [2010] NSWSC 768 HEARING DATE(S): 9 July 2010 JUDGMENT OF: Ball J EX TEMPORE JUDGMENT DATE: 9 July 2010 DECISION: Leave pursuant to s 500(2) of the Corporations Act granted to plaintiffs to continue proceedings against second defendant. CATCHWORDS: INSOLVENCY - leave to proceed against company in liquidation - nature of issues makes court more appropriate venue to deal with claim. LEGISLATION CITED: Corporations Act 2001 CATEGORY: Procedural and other rulings CASES CITED: Robins Haigh McNeill Pty Ltd v Nichols-Cumming Advertising Australia Pty Ltd (in liq) [2001] VSC 427
Viscariello v Bernsteen Pty Ltd (in liq) [2004] SASC 266PARTIES: Alpine Accommodation Nominees Pty Limited ACN 064 123 2671 (First Plaintiff)
Ferdinand Oosterhoff (Second Plaintiff)
Mette Ann Chow (First Defendant)
Oliver Keegan Pty Limited (In Liquidation) (Second Defendant)FILE NUMBER(S): SC 2006/256710 COUNSEL: H El-Hage (Plaintiffs) SOLICITORS: Turner Freeman (Plaintiffs)
NPR Legal (First Defendant)
Maddocks (Second Defendant)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
BALL J
9 JULY 2010
2006/256710 ALPINE ACCOMMODATION NOMINEES PTY LTD & ANOR v METTE ANN CHOW & ANOR
EX TEMPORE JUDGMENT
1 This is an application for leave pursuant to s 500(2) of the Corporations Act to proceed against the second defendant (Oliver Keegan). The application is not opposed by the liquidator of that company.
2 The proceedings in respect of which leave to proceed is sought raise a number of issues. Only one of those issues affects Oliver Keegan. That issue concerns a ski lodge at Thredbo known as Snow Goose Lodge. Snow Goose Lodge was originally occupied and operated by Rylely Pty Ltd (Ryley), a company associated with the second plaintiff (Mr Oosterhoff). That company, along with others associated with Mr Oosterhoff, got into financial difficulties and, in 2002, was placed into receivership.
3 Oliver Keegan was controlled by Dr Chow and his now estranged wife, who is the first defendant (Mrs Chow). Both were friends of Mr Oosterhoff at the time. The plaintiffs allege that, not long after Ryley was placed into receivership, Mr Oosterhoff arranged for Oliver Keegan to acquire Snow Goose Lodge from the receivers of Ryley and that Mrs Chow, on her own behalf and on behalf of Oliver Keegan, agreed that it would do so on the basis that Mr Oosterhoff and the first plaintiff (Alpine Accommodation), which is a company controlled by Mr Oosterhoff, would hold a 50 percent interest in the Lodge.
4 The plaintiffs allege that they contributed a substantial amount towards the costs of acquisition of the Lodge and that they were responsible for its day-to-day management after its acquisition by Oliver Keegan.
5 St George Bank lent $700,000 in connection with the purchase of the Lodge by Oliver Keegan and took security over it.
6 Oliver Keegan was placed into liquidation in May 2006 following the breakdown of Dr Chow's and Mrs Chow’s marriage. St George Bank appointed receivers and Managers to sell Snow Goose Lodge. It was sold in November 2006. In 2009, following the sale of another property over which St George Bank held security in respect of other loans made to Oliver Keegan and Mr and Mrs Chow, there was a surplus in favour of Oliver Keegan of approximately $680,000. The plaintiffs claim an interest in that surplus by reason of the agreement alleged to have been reached between Mr Oosterhoff and Mrs Chow in 2002.
7 The principles applicable to the grant of leave are not in dispute. The essential question is whether the plaintiffs should be left to lodge a proof of debt and to appeal to the Court, if that proof is rejected, or whether the circumstances of the case warrant dealing with the claim through normal Court proceedings.
8 In answering that question the Court should have regard to a variety of factors including "the amount and seriousness of the claim, the degree of complexity of the legal and factual issues involved, and, if proceedings have already been commenced, the stage to which those proceedings may have progressed: Viscariello v Bernsteen Pty Ltd (in liq) [2004] SASC 266 at [21]. It will normally be appropriate to grant leave where the plaintiff asserts a proprietary claim to assets held by the company: see Robins Haigh McNeill Pty Ltd v Nichols-Cumming Advertising Australia Pty Ltd (in liq) [2001] VSC 427.
9 In my opinion, this is an appropriate case in which to grant leave. The nature of the legal and factual issues make it more appropriate for those issues to be determined in the context of Court proceedings. In addition, the proceedings involve proprietary claims. They are not simply concerned with the recovery of a debt. Moreover, it seems clear that Mrs Chow played a critical role in the events which are the subject of these proceedings. It would be highly desirable if the claim against her and the claim against Oliver Keegan were resolved at the same time.
10 For those reasons, I grant leave.
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