Ashmere Cove Pty Ltd v Knightsbridge Managed Funds Ltd (In liq)

[2007] FCA 1428

FEDERAL COURT OF AUSTRALIA

Ashmere Cove Pty Ltd v Knightsbridge Managed Funds Ltd (In liq)
[2007] FCA 1428

CORPORATIONS – insolvency – leave to proceed against company in liquidation – joinder of company insurers as respondents – leave to proceed ordered

ASHMERE COVE PTY LTD , CG SUPER PTY LTD, CHORAL PTY LTD, PULLINGTON INVESTMENTS PTY LTD, GERALDINE GRAY IN HER CAPACITY AS EXECUTOR FOR THE LATE CONSTANCE PHYLLIS JAMES, MANTEL BREWING SERVICES, CATHERINE EMMA HUSK, MIKAYLA KIM DUNNE AND JENNIFER ANNE ALLEN, BLYTH NOMINEES PTY LTD, JOHN ANDREW MASLEN AND JOAN CARMEL MASLEN AND CREATON PTY LTD v GIOVANNI MAURIZIO CARRELLO (LIQUIDATOR) OF KNIGHTSBRIDGE MANAGED FUNDS LIMITED (IN LIQ) AND KNIGHTSBRIDGE MANAGED FUNDS LIMITED (IN LIQ)
WAD 307 OF 2006

FRENCH  J
11 SEPTEMBER 2007
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 307 OF 2006

BETWEEN:

ASHMERE COVE PTY LTD
First Applicant

CG SUPER PTY LTD
Second Applicant

CHORAL PTY LTD
Third Applicant

PULLINGTON INVESTMENTS PTY LTD
Fourth Applicant

GERALDINE GRAY IN HER CAPACITY AS EXECUTOR FOR THE LATE CONSTANCE PHYLLIS JAMES
Fifth Applicant

MANTEL BREWING SERVICES
Sixth Applicant

CATHERINE EMMA HUSK
Seventh Applicant

MIKAYLA KIM DUNNE AND JENNIFER ANNE ALLEN
Eighth Applicant

BLYTH NOMINEES PTY LTD
Ninth Applicant

JOHN ANDREW MASLEN AND JOAN CARMEL MASLEN
Tenth Applicant

CREATON PTY LTD
Eleventh Applicant

AND:

GIOVANNI MAURIZIO CARRELLO (LIQUIDATOR) OF KNIGHTSBRIDGE MANAGED FUNDS LIMITED (IN LIQ)
First Respondent

KNIGHTSBRIDGE MANAGED FUNDS LIMITED (IN LIQ)
Second Respondent

JUDGE:	FRENCH  J
DATE OF ORDER:	11 SEPTEMBER 2007
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The applicants have leave pursuant to s 500(2) of the Corporations Act 2001 (Cth) to commence and proceed with proceeding WAD 305 of 2006 against the second respondent herein, such leave to be given nunc pro tunc to the extent necessary, on the conditions set out below.

2.The applicants shall not be at liberty to enter judgment against the second respondent herein, nor to enforce any judgment against I, without leave of the Honourable Court to do so.

3.Unless and until further order to the contrary, the second respondent herein shall not be required to participate further, or take any further steps, in the proceedings WAD 305 of 2006.

4.The costs of this application be reserved until after the determination of WAD 305 of 2006 or until further orders.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 307 OF 2006

BETWEEN:

ASHMERE COVE PTY LTD
First Applicant

CG SUPER PTY LTD
Second Applicant

CHORAL PTY LTD
Third Applicant

PULLINGTON INVESTMENTS PTY LTD
Fourth Applicant

GERALDINE GRAY IN HER CAPACITY AS EXECUTOR FOR THE LATE CONSTANCE PHYLLIS JAMES
Fifth Applicant

MANTEL BREWING SERVICES
Sixth Applicant

CATHERINE EMMA HUSK
Seventh Applicant

MIKAYLA KIM DUNNE AND JENNIFER ANNE ALLEN
Eighth Applicant

BLYTH NOMINEES PTY LTD
Ninth Applicant

JOHN ANDREW MASLEN AND JOAN CARMEL MASLEN
Tenth Applicant

CREATON PTY LTD
Eleventh Applicant

AND:

GIOVANNI MAURIZIO CARRELLO (LIQUIDATOR) OF KNIGHTSBRIDGE MANAGED FUNDS LIMITED (IN LIQ)
First Respondent

KNIGHTSBRIDGE MANAGED FUNDS LIMITED (IN LIQ)
Second Respondent

JUDGE:	FRENCH  J
DATE:	11 SEPTEMBER 2007
PLACE:	PERTH

REASONS FOR ORDERS ON LEAVE TO PROCEED AGAINST SECOND RESPONDENT

1. Having regard to the conclusions which I have reached in the related proceedings, WAD 305 of 2006 allowing joinder of the second respondent’s Insurers, I propose to give leave to the applicants to proceed against the second respondent in that action.  The opposition to the grant of that leave was substantially based upon argument against the joinder of the Insurers.  I shall make an order in terms of the minute proposed by the applicants.

I certify that the preceding one (1) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:
Dated:        11 September 2007

Counsel for the Applicants:	Mr MD Cuerden
Solicitor for the Applicants:	Dwyer Durack
Counsel for the Second Respondent:	Mr GD Cobby
Solicitor for the  Second Respondent:	Christensen Vaughan
Date of Hearing:	28 August 2007
Date of Judgment:	11 September 2007