Re: BEACH PETROLEUM NL and CLAREMONT PETROLEUM NL
And: MALCOLM KEITH JOHNSON; MICHAEL JOHN FULLER; CHRISTOPHER PAUL McDONALD
MAIN; JOSEPH PATRICK CUMMINGS; FIRSTWAY LIMITED; JINGELLIC MINERALS NL;
SPARGOS MINING NL; ENTERPRISE GOLD MINES NL; INDEPENDENT RESOURCES LIMITED and
INDEPENDENT RESOURCES (ASIA) GROUP PTY LTD
No. G53 of 1991
FED No. 868
Number of pages - 20
Corporations Law
(1992) 9 ACSR 404, (1992) 11 ACLC 58
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Von Doussa J.(1)
CATCHWORDS
Corporations Law - applications for relief under s.1323 of the Corporations Law and for Mareva injunction to protect the assets of the respondent Jingellic Minerals NL until judgment - whether appropriate in the circumstances to appoint a receiver and manager - appointment ordered.
Corporations Law, s.1323
Patterson v BTR Engineering (Aust) Ltd and Others (1989) 18 NSWLR 319 applied
HEARING
ADELAIDE
#DATE 23:11:1992
ORDER
Upon the usual undertakings as to damages by the applicants and each of them and the applicants' further undertaking to hold the balance of costs payable to Beach Petroleum NL by Jingellic Minerals NL in the Supreme Court of South Australia Action No. 766 of 1991 in a separate interest bearing account charged with the due performance of the undertaking
The Court orders that:
1. Michael Jaunay Mount, a partner of Messrs Michael Mount PPB, Chartered Accountants of 80 King William Street, Adelaide in the State of South Australia, be appointed receiver and manager of the property of Jingellic Minerals NL ("Jingellic") for a period of six months from the date hereof such period of appointment to be reviewed before the expiration of the six month period by this Court.
2. The receiver and manager shall have the unfettered power to conduct the business and management of Jingellic in such manner as he thinks most beneficial to the interests of the members of Jingellic as a whole.
3. Without in any way limiting the powers, duties or rights conferred on the receiver and manager by Part 5.2 of the Corporations Law, the receiver and manager is hereby empowered and ordered to investigate or cause to be investigated:
3.1 the solvency of Jingellic;
3.2 the position Jingellic should take in these proceedings; and to comply with Notices pursuant to the ASC Law.
4. Within two months of the date of this order and on such other occasions as may be ordered the receiver and manager shall prepare a statement showing the assets and liabilities of Jingellic as at the last day of the period and a report containing such other information as he thinks necessary to enable the members of Jingellic to assess the financial position of Jingellic as at the last day of the period.
5. Save for the provisions of paragraph 6 hereof, the directors of Jingellic shall cease to hold office with effect from the date hereof. During the period of receivership and management:
5.1 the receiver and manager shall assume the management of Jingellic and shall perform the duties,…
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- AGLC
- Beach Petroleum NL & anor v Johnson, M.K. & ors [1992] FCA 868 ((1992) 9 ACSR 404; (1992) 11 ACLC 58)
- Case
- [1992] FCA 868
- Decision Date
CaseChat Overview and Summary
The legal issues before the court centred on whether the plaintiffs had established grounds for relief under section 1323 of the Corporations Law and whether the appointment of a receiver and manager was warranted. The court had to consider the evidence of mismanagement, the necessity of asset protection, and the overall interests of Jingellic's members. Additionally, the court evaluated the plaintiffs' undertakings regarding damages and costs, which were critical to the granting of relief.
In its decision, the court found that the plaintiffs had sufficiently demonstrated mismanagement and the need for asset protection, justifying the appointment of a receiver and manager. The court appointed Michael Jaunay Mount as receiver and manager of Jingellic for six months, with detailed directives regarding his powers, duties, and the reporting requirements. The order also included provisions for the management of Jingellic during the receivership, the preservation of certain appeal rights for Jingellic's directors, and the financial obligations of Jingellic towards the plaintiffs. Furthermore, the court restrained Jingellic's wholly owned subsidiary, Scanfire Exploration Pty Ltd, from dealing with its assets.
The final orders granted comprehensive relief to the plaintiffs, including the appointment of a receiver and manager, detailed directives for the management of Jingellic, and financial provisions to ensure the protection of the plaintiffs' interests. The court also preserved the directors' rights to appeal under certain conditions and imposed specific financial obligations on Jingellic.
Orders
Orders of the court
Upon the usual undertakings as to damages by the applicants and each of them and the applicants' further undertaking to hold the balance of costs payable to Beach Petroleum NL by Jingellic Minerals NL in the Supreme Court of South Australia Action No. 766 of 1991 in a separate interest bearing account charged with the due performance of the undertaking
The Court orders that:
1. Michael Jaunay Mount, a partner of Messrs Michael Mount PPB, Chartered Accountants of 80 King William Street, Adelaide in the State of South Australia, be appointed receiver and manager of the property of Jingellic Minerals NL ("Jingellic") for a period of six months from the date hereof such period of appointment to be reviewed before the expiration of the six month period by this Court.
2. The receiver and manager shall have the unfettered power to conduct the business and management of Jingellic in such manner as he thinks most beneficial to the interests of the members of Jingellic as a whole.
3. Without in any way limiting the powers, duties or rights conferred on the receiver and manager by Part 5.2 of the Corporations Law, the receiver and manager is hereby empowered and ordered to investigate or cause to be investigated:
3.1 the solvency of Jingellic;
3.2 the position Jingellic should take in these proceedings; and to comply with Notices pursuant to the ASC Law.
4. Within two months of the date of this order and on such other occasions as may be ordered the receiver and manager shall prepare a statement showing the assets and liabilities of Jingellic as at the last day of the period and a report containing such other information as he thinks necessary to enable the members of Jingellic to assess the financial position of Jingellic as at the last day of the period.
5. Save for the provisions of paragraph 6 hereof, the directors of Jingellic shall cease to hold office with effect from the date hereof. During the period of receivership and management:
5.1 the receiver and manager shall assume the management of Jingellic and shall perform the duties, and may perform any of the functions and exercise any of the powers, of the directors of Jingellic;
5.2 the provisions of the Corporations Law relating to the keeping of accounts, the appointment and re-appointment of auditors and the rights and duties of auditors shall continue to apply in relation to Jingellic, and in the application of those provisions to and in relation to Jingellic a reference to the directors of Jingellic shall be read as a reference to the receiver and manager of Jingellic; and
5.3 there shall be no stay of any action or other civil proceedings by or against Jingellic in any court or other tribunal nor shall there be any restraint upon the commencement or prosecution of any action or other civil proceedings by or against Jingellic in any court or other tribunal. In all or any of such actions or civil proceedings or otherwise the receiver and manager shall have authority to bring or defend such actions or civil proceedings in the name of Jingellic.
6. The power of the directors to appeal to the Full Court of the Federal Court of Australia in the name of Jingellic be preserved upon their agreeing to indemnify Jingellic for any costs which it may incur in respect of such proceedings and appropriately securing such costs.
7. Jingellic pay the applicants' costs of the applicants' notice of motion dated 16 November 1992 and this order.
8. The following additional orders shall apply in relation to the receiver and manager:
8.1 the receiver and manager shall be entitled to reasonable remuneration and reasonable costs and expenses properly incurred in the performance of his duties and the exercise of his powers as receiver and manager to be calculated on the basis of the time reasonably spent by the receiver and manager, his partners and staff in accordance with the Insolvency Practitioners Association scale of fees or such other scale as the Registrar may decide, such fees to be paid out of the assets of Jingellic as a first charge; 8.2 the receiver and manager shall deliver an account for all amounts drawn by him for his remuneration, costs and expenses to the Court every three months until the termination of the period of receivership and management or until further order and pay any balances as may be due to him or by him in such manner as the Court may direct.
9. The wholly owned subsidiary of Jingellic, namely Scanfire Exploration Pty Ltd and its present directors until further order be restrained from disposing of, charging or in any way dealing with its assets.
10. The parties hereto and the receiver and manager have liberty to apply.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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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