Angus Carnegie Gordon in his capacity as liquidator of Deva Loka Pty Limited (in liquidation) (ACN 142 201 045) v Coral Bay East Coast Pty Limited (ACN 132 028 285)
[2016] NSWSC 245
•14 March 2016
Supreme Court
New South Wales
Medium Neutral Citation: Angus Carnegie Gordon in his capacity as liquidator of Deva Loka Pty Limited (in liquidation) (ACN 142 201 045) v Coral Bay East Coast Pty Limited (ACN 132 028 285) [2016] NSWSC 245 Hearing dates: 14 March 2016 Date of orders: 14 March 2016 Decision date: 14 March 2016 Jurisdiction: Common Law Before: Schmidt J Decision: Orders sought made.
Catchwords: INJUNCTION – ex parte – declaratory and other relief sought in relation to access to premises for the purposes of removing property identified – undertaking given as to damages – urgency established – balance of convenience favours the granting of a short stay – orders sought made Legislation Cited: Civil Procedure Act 2005 (NSW) Category: Procedural and other rulings Parties: Angus Carnegie Gordon in his capacity as liquidator of Deva Loka Pty Limited (in liquidation)
ACN 142 201 045 (Plaintiff)
Coral Bay East Coast Pty Limited
ACN 132 028 285 (Defendant)Representation: Counsel:
Solicitors:
Mr C O’Neill (Plaintiff)
Hicksons Lawyers (Plaintiff)
File Number(s): 2016/80436 Publication restriction: None
EX TEMPORE Judgment
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HER HONOUR: The short reasons for making the orders sought are that the plaintiff has this afternoon commenced proceedings by which declaratory and other relief is sought in relation to access to the defendant's premises at Lidcombe, for the purposes of removing its property, identified in schedule A to the summons, in circumstances where, on the affidavits of Mr Gordon, who was appointed the plaintiff's liquidator on 25 February 2016, and of Mr Moore, the plaintiff's solicitor, it appears that the defendant has taken steps to prevent the plaintiff from accessing premises where the property is stored, that property having been sold to a third party who has made payment to the liquidator for the property. Those steps, the plaintiff contends are interfering with the sale of the property in circumstances where there is a concern as to other steps which the defendant might take in respect of the property.
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The plaintiff has approached the Court ex parte giving an undertaking as to damages, circumscribed, of course, by the fact of the proceedings being brought by the liquidator in that capacity. The high duty of candour imposed on a party who approaches the Court ex parte, I am satisfied has thereby been met. In the circumstances, given the nature of the orders which are sought and which I propose to make, that limitation is no basis on which the orders sought should be refused.
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Applications such as this should not be dealt with ex parte unless a necessary degree of urgency is demonstrated. Here, that urgency has been established, given what is disclosed in the affidavits sworn by Mr Gordon and Mr Moore.
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There have been communications with Mr Pearce, the director of the defendant and the defendant's solicitors, as to what is in dispute in circumstances where the liquidator has made payments of rent to the defendant for the period since his appointment. It is not obvious, on what is before the Court, that there is a basis for the steps which the defendant has taken. On the material it is apparent there is a serious question to be tried in the proceedings and that the plaintiff has a prima facie case in the sense that if the evidence remains as it is, there is a probability that at trial the plaintiff would be entitled to relief.
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The balance of convenience, in the circumstances, favours the grant of a short stay until tomorrow, so that the parties can come before the Court in an endeavour to resolve, in an orderly way, what is in issue between the parties. The terms of the stay which I have imposed include an order that the parties discuss and attempt to resolve what has brought the plaintiff to Court, prior to the adjourned hearing at noon tomorrow.
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That accords with the obligations imposed on parties by s 56 of the Civil Procedure Act2005 (NSW). On what is presently before the Court the dispute seems eminently capable of resolution, given the parties’ apparent respective rights and obligations.
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Decision last updated: 15 March 2016
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