Baskerville v Baskerville

Case [2021] QSC 292

SUPREME COURT OF QUEENSLAND

CITATION:

Baskerville v Baskerville & Ors [2021] QSC 292

PARTIES:

CHRISTOPHER JOHN BASKERVILLE IN HIS CAPACITY AS LIQUIDATOR OF PROFESSIONAL REPRESENTATIVES PTY LTD ACN 162 127 880

(applicant)

v
CHRISTOPHER JOHN BASKERVILLE IN HIS CAPACITY AS LIQUIDATOR OF SNG5 PTY LTD ACN 162 503 488

(first respondent)

DAVID LAWRENCE ORTH

(second respondent)

REAL WEALTH PROTECT PTY LTD ACN 600 035 818

(third respondent)

ORTH HOLDINGS PTY LIMITED ACN 611 540 286

(fourth respondent)

ORTH ASSETS PTY LIMITED ACN 622 385 200

(fifth respondent)

MARK ALVIN HOLZWORTH

(sixth respondent)

HWP FINANCIAL PTY LTD ACN 164 056 624 (formerly known as HOLZWORTH WEALTH PARTNERS PTY LTD)

(seventh respondent)

FILE NO/S:

BS No 7829 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

23 July 2021

JUDGE:

Martin J

ORDER:

1.   The application is dismissed.

2.   I will hear the parties on costs.

CATCHWORDS:

CORPORATIONS – WINDING UP – CONDUCT AND INCIDENTS OF WINDING UP – EFFECT OF WINDING UP ON OTHER TRANSACTIONS – PREFERENCES AND VOIDABLE TRANSACTIONS – GENERALLY – where the applicant liquidator seeks an extension of time to commence voidable transaction proceedings – where the applicant submits that there is an adequate explanation for the delay in bringing the proceedings – where the respondents submit the delay is caused by the conduct and lack of action by the liquidators and that the liquidator was able to commence proceedings before the expiration of the time – whether it is fair and just in all the circumstances to extend the limitation period

EVIDENCE – ADMISSIBILITY – EXCLUSIONS: PRIVILEGES – PUBLIC INTEREST PRIVILEGE – SETTLEMENT NEGOTIATIONS – where the applicant objects to the admissibility of an email relied upon by the respondents given the without prejudice nature of the communication – where the applicant submits that the email sent by the applicant’s solicitor is inadmissible because it is a without prejudice communication between the applicant’s solicitor and the second respondent about settlement discussions – where the respondents submit that the email is admissible because it is at odds with the suggestion that the applicant could not have commenced a proceeding within time and, if the email is without prejudice communication, then the Court would be misled if the evidence were not received – whether the statement should be admitted as evidence going to the truth of the assertion that the application was not ready to proceed

Corporations Act 2001, s 503B, s 588FE, s 588FF

Uniform Evidence Act 1995 (NSW), s 131

BP Australia Limited v Brown (2003) 58 NSWLR 322
Clout v Andi-Co Australia Pty Ltd (2013) 96 ACSR 512
Field v Commissioner for Railways (NSW) (1959) 99 CLR 285
Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 254 CLR 489
Glengallan Investments Pty Ltd v Andersen [2002] 1 Qd R 233
Green v Chiswell Furniture Pty Ltd (in liq) [1999] NSWSC 608
JA McBeath Nominees Pty Ltd v Jenkins Development Corporation…

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AGLC
Baskerville v Baskerville [2021] QSC 292
Case
[2021] QSC 292
Decision Date

CaseChat Overview and Summary

The case of Baskerville v Baskerville was heard in the Federal Circuit Court, with Baskerville, the liquidator, as the applicant, and Baskerville and others as respondents. The applicant sought an extension of time to initiate voidable transaction proceedings against the respondents, arguing that there was an adequate explanation for the delay in bringing the proceedings. The respondents countered that the delay was due to the conduct and lack of action by the liquidators, and that the liquidator could have commenced proceedings before the expiration of the time. The court needed to determine whether it was fair and just in all the circumstances to extend the limitation period.

Regarding the admissibility of evidence, the applicant objected to an email cited by the respondents, claiming it was a without prejudice communication between the applicant's solicitor and the second respondent about settlement discussions. The respondents argued that the email should be admissible because it contradicted the applicant's assertion that they could not have commenced a proceeding within time, and if the email was a without prejudice communication, excluding it would mislead the court. The court had to decide whether the statement should be admitted as evidence going to the truth of the assertion that the application was not ready to proceed.

The court dismissed the application, holding that the applicant had not demonstrated a sufficient explanation for the delay and that the email was not admissible as it was a without prejudice communication. The court indicated it would hear the parties on costs.

The final orders were that the application was dismissed and the parties would be heard on the issue of costs.

Orders

Orders of the court

1. The application is dismissed.

2. I will hear the parties on costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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