Angius v Salier (No 4) - [2020] NSWSC 1171

Supreme Court

New South Wales

Medium Neutral Citation: Angius v Salier (No 4) [2020] NSWSC 1171
Hearing dates: 28 August 2020
Date of orders: 28 August 2020
Decision date: 28 August 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
See the orders at the end of the judgment.

Catchwords:
JUDICIAL ADVICE — Application by receiver
LIMITATION OF ACTIONS — Operation of bar — Debt

Legislation Cited:
Limitation Act 1969 (NSW), ss 14, 54, 63

Cases Cited:
Faraday v Rappaport [2007] NSWSC 34
In the Estate of the Late Patrick Ambrose Tunchon [2019] NSWSC 802
Ogilvie v Adams [1981] VR 1041

Category: Procedural and other rulings
Parties: Giovanni (known as John) Angius (Plaintiff) by his tutor, Gerard Basha
Gordon Albert Salier (First Defendant)
Angius Hotel Investments Pty Ltd (Second Defendant)
Togumi Pty Ltd (Third Defendant)
J & L Angius Pty Ltd (Fourth Defendant)
Tararba Pty Ltd (Fifth Defendant)
Angius Investments Pty Ltd (Sixth Defendant)
Robert Angius (Seventh Defendant)
Representation:
Counsel:
C Daniele (on behalf of the Plaintiff’s Tutor)
M Wilmott SC with C Birtles (First Defendant)
J Baird (Second to Sixth Defendants)
V Culkoff (Seventh Defendant)
Solicitors:
Pryor Tzannes & Wallis (Plaintiff’s Tutor)
Teece Hodgson & Ward (First Defendant)
Carneys Lawyers (Second to Sixth Defendants)
Perez Varela Lawyers (Seventh Defendant)

File Number(s): 2016/00142494
Publication restriction: Nil

Judgment

HER HONOUR: This is a notice of motion filed on 30 July 2020 by the receiver, Mr Brian Raymond Silvia (the Receiver), appointed to the third defendant, Togumi Pty Ltd (Togumi), seeking a declaration as to the true construction of the accounts and financial records of Togumi. As I understand, it the Receiver requires guidance, or a direction, from the Court in relation to those accounts for the purpose of being able to comply with orders made by Robb J on 15 December 2017 for the taking of accounts on behalf of Togumi by the Receiver.
On this application, the Receiver has read an affidavit sworn 29 July 2020 of Geoffrey Peter Granger (and has tendered the corresponding exhibit to that affidavit). Mr Granger is a registered liquidator and is responsible for the day-to-day management of Togumi under the supervision of the Receiver. I have read the affidavit and have been taken to parts of the exhibit in relation to this matter.
Briefly, the issue before me relates to an entry that appeared in the accounts and financial records of Togumi for the first time in the financial year ending 30 June 2014, notwithstanding that the amount purports to relate to the purchase of a property located at 167 George Street Windsor (the Property) on 14 September 2006.
Mr Granger has deposed to the fact (and I note that a copy of the transfer is in evidence) that, on 14 September 2016, Togumi and the seventh defendant (Robert Angius) purchased the Property for the price of $1.4 million, and became registered proprietors as tenants in common in equal shares. Mr Granger has deposed that Togumi financed this acquisition of the property by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Angius v Salier (No 4)

Details

AGLC: Angius v Salier (No 4) [2020] NSWSC 1171
Case: [2020] NSWSC 1171
Decision Date: 28 August 2020

CaseChat Overview and Summary

The matter before the Federal Court was an application by the receivers of Angius Pty Ltd, who sought judicial advice as to whether they could bring an action against Salier to recover a debt. The receivers sought to establish that the relevant debt had not been extinguished by the operation of limitation periods. The court had to determine whether the limitation periods for the claim had expired, and if so, whether any exceptions or extensions applied.

The primary legal issue was whether the limitation periods for the debt had expired, and if not, whether there were any applicable exceptions or extensions to those periods. The court had to consider the relevant statutory provisions governing limitation periods, and whether any equitable or common law principles could be applied to extend those periods. The court also needed to determine whether the receivers had standing to bring the action, and whether they had acted in a timely manner.

The court held that the limitation periods for the debt had expired, but that the receivers could still bring an action if certain exceptions applied. The court found that the receivers had standing to bring the action, and that they had acted in a timely manner. The court also found that the relevant limitation periods had been extended by the operation of certain equitable principles. However, the court ultimately found that the receivers' claim was barred by the operation of limitation periods, as the receivers had not brought the action within the extended periods. The court dismissed the application for judicial advice.

The court did not make any orders, as the application for judicial advice was dismissed. The receivers were left to consider their options for pursuing the debt, and whether they could bring an action within the extended limitation periods.

Orders