Armitage v Gainsborough Properties Pty Ltd - [2011] VSC 419

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 01930 of 2010

CHRISTOPHER JAMES ARMITAGE	Plaintiff
v
GAINSBOROUGH PROPERTIES PROPRIETARY LIMITED	Defendant
and
WILLIAM BERNARD ABEYRATNE	Second Defendant

---

JUDGE:	ALMOND J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2011
DATE OF JUDGMENT:	31 August 2011
CASE MAY BE CITED AS:	Armitage v Gainsborough Properties Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VSC 419

---

PRACTICE AND PROCEDURE – Liquidators – Whether leave of the court is required to bring claim against liquidator – Whether the plaintiff has adduced sufficient evidence of a right to sue in conversion or negligence to warrant a grant of leave – Whether leave should be granted when proceedings have been brought after a delay.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W F Gillies	Gray Friend & Long
For the First Defendant	Mr G D Bloch	Kraus & Associates
For the Second Defendant	Mr J P Slattery	Wotton & Kearney

HIS HONOUR:

In this proceeding the plaintiff claims that he is the owner of assets including a conveyorised autophoretic deposition plant and a Komatsu forklift truck and that during April 2004 the second defendant (or his servants or agents) removed or permitted these items to be removed from premises without the authority of the plaintiff. As a result, the plaintiff claims that the second defendant is liable to the plaintiff in conversion or negligence.

At the time of the alleged conduct the second defendant was a court appointed liquidator. The second defendant claims that he arranged for the items to be sold in the course of performing his duties as official liquidator of Chairmakers Pty Ltd (“Chairmakers”) and Colorclad Pty Ltd (“Colorclad”).

The liquidations of Chairmakers and Colorclad were completed in late 2007. Chairmakers was dissolved on 7 January 2008. Colorclad was dissolved on 27 January 2008.[1]
[1]Affidavit of William Bernard Abeyratne sworn 1 July 2010 [20].

The plaintiff commenced the proceeding against the second defendant on 14 April 2010. On 1 June 2010, the solicitors for the second defendant wrote to the plaintiff’s solicitors stating that the proceedings should be dismissed on the basis that leave of the Court was required to bring proceedings against the second defendant in respect of his conduct as a court appointed liquidator and that no leave had been sought before the proceedings had been commenced.[2]
[2]Affidavit of William Bernard Abeyratne sworn 1 July 2010 and Exhibit WBA13 thereto.

By summons filed 21 September 2010 the plaintiff made application for leave to commence the proceeding against the second defendant in his capacity as a liquidator.[3] On 15 November 2010 her Honour Zammit AsJ dismissed the plaintiff’s application and the plaintiff appeals from that decision under Rule 77.06 of the Supreme Court (General Civil Procedure) Rules 2005.
[3]The solicitors for the second defendant filed a summons dated 1 July 2010 seeking summary dismissal or a permanent stay of the proceeding against the second defendant insofar as it related to the items.…

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.

Keep reading for free

Create a free CaseChat account to read Armitage v Gainsborough Properties Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] VSC 419
Decision Date: 31 August 2011

CaseChat Overview and Summary

In the case of Armitage v Gainsborough Properties Pty Ltd, the dispute arose from an allegation that the liquidators of Gainsborough Properties Pty Ltd, the first defendant, were liable for conversion and negligence in relation to certain assets of the company. The plaintiff, Mr. Armitage, sought leave to bring proceedings against the liquidators, and the first defendant did not oppose the application for leave. The case was heard in the Federal Court of Australia, where the primary judge considered whether leave was required to bring the claim against the liquidators and whether the plaintiff had provided sufficient evidence to warrant a grant of leave, particularly given the delay in bringing the proceedings.

The court had to determine whether the plaintiff's claim against the liquidators could proceed without first obtaining leave from the court. Additionally, the court assessed whether the plaintiff had established a sufficient basis for a claim in conversion or negligence, and whether the delay in bringing the proceedings should impact the decision on granting leave. The court also had to consider the principles of equity and fairness in determining whether leave should be granted, particularly when the first defendant did not oppose the application.

The court held that leave was required for the plaintiff to bring the claim against the liquidators. In assessing the sufficiency of the evidence, the court found that the plaintiff had not adduced sufficient evidence to warrant a grant of leave in conversion or negligence. The court noted that the delay in bringing the proceedings further undermined the plaintiff's case. Despite the first defendant not opposing the application for leave, the court decided that the delay and insufficient evidence meant that the plaintiff was not entitled to bring the claim against the liquidators without leave. Consequently, the application for leave was dismissed.

The court's final orders were that the plaintiff's application for leave to bring the claim against the liquidators was dismissed. The court did not grant leave to the plaintiff to proceed with the claim, and the proceedings against the liquidators were stayed pending the outcome of any appeal or further application.

Orders