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Bell v Cribb

Bell v Cribb

Case [2013] WASC 32 8 February 2013

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Summary Judgment

Uncommercial Transactions

Bankruptcy

Insolvency

Stay of Proceedings

Civil Litigation & Procedure

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BELL -v- CRIBB [2013] WASC 32

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 32
Case No:	CIV:1697/2012	Heard:	15 & 17 JANUARY 2013
Coram:	BEECH J	Delivered:	8/02/13
No of pages:	22	Judgment Part:	1 of 1
Result:	Defendant's summary judgment applications on counterclaim partially successful, partially unsuccessful and partially adjourned Other applications adjourned
Category:	B
PDF Version

Parties:	CARL WILLIAM BELL ALLCERT HOLDINGS PTY LTD AS TRUSTEE FOR THE W J TRUST TRADING AS TWIN STAR RESOURCES NEIL RAYMOND CRIBB AS LIQUIDATOR OF COSTANOZA PTY LTD (IN LIQ) WATER CORPORATION COSTANOZA PTY LTD (IN LIQ) MAURICE JAMES CUTTS ALLCERT HOLDIGNS PTY LTD AS TRUSTEE FOR THE W J TRUST TRADING AS TWIN STAR RESOURCES ACCEPT ENTERPRIDES PTY LTD
Catchwords:	Practice and procedure Summary judgment Application for summary judgment on counterclaim Effect of bankruptcy of a party Whether any arguable defence to counterclaims Turns on own facts
Legislation:	Bankruptcy Act 1966 (Cth), s 60(2) Corporations Act 2001 (Cth), s 588FB Rules of the Supreme Court 1971 (WA), O 4 r 3, O 12 r 1
Case References:	Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Anderson v Effexseven (1998) 10 ANZ Ins Cas 61-424 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 Bell v Cribb [2012] WASCA 234 Bell v Cribb [No 2] [2013] WASCA 6 Cribb v Bell [2012] WASC 346 Donyette Pty Ltd v Top Lodge Nominees Pty Ltd [No 2] [2011] WASC 141 Duckworth v Water Corporation [2012] WASC 30 Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 372 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Prow Pty Ltd v Commissioner of Police [2012] WASC 363 Re Hoffman [2004] WASCA 238 Re Lofthouse [2001] FCA 25; (2001) 107 FCR 151

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BELL -v- CRIBB [2013] WASC 32 CORAM : BEECH J HEARD : 15 & 17 JANUARY 2013 DELIVERED : 8 FEBRUARY 2013 FILE NO/S : CIV 1697 of 2012 BETWEEN : CARL WILLIAM BELL

First Plaintiff

ALLCERT HOLDINGS PTY LTD AS TRUSTEE FOR THE W J TRUST TRADING AS TWIN STAR RESOURCES

Second Plaintiff

AND

NEIL RAYMOND CRIBB AS LIQUIDATOR OF COSTANOZA PTY LTD (IN LIQ)

First Defendant

WATER CORPORATION

Second Defendant

COSTANOZA PTY LTD (IN LIQ)

Third Defendant

MAURICE JAMES CUTTS

Fourth Defendant

(BY ORIGINAL ACTION)

(Page 2)

NEIL RAYMOND CRIBB AS LIQUIDATOR OF COSTANOZA PTY LTD (IN LIQ)

First Plaintiff (by counterclaim)

COSTANOZA PTY LTD (IN LIQ)

Second Plaintiff (by counterclaim)

AND

CARL WILLIAM BELL

First Defendant (by counterclaim)

ALLCERT HOLDIGNS PTY LTD AS TRUSTEE FOR THE W J TRUST TRADING AS TWIN STAR RESOURCES

Second Defendant (by counterclaim)

ACCEPT ENTERPRIDES PTY LTD

Third Defendant (by counterclaim)

(BY COUNTERCLAIM)

Catchwords:

Practice and procedure - Summary judgment - Application for summary judgment on counterclaim - Effect of bankruptcy of a party - Whether any arguable defence to…

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.

Continue reading Bell v Cribb

Details

AGLC: Bell v Cribb [2013] WASC 32
Case: [2013] WASC 32
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia was presented with an application for summary judgment in relation to counterclaims made by Neil Raymond Cribb, the liquidator of Costanoza Pty Ltd, a company in liquidation. The plaintiffs, Carl William Bell and Allcert Holdings, sought the return of various vehicles and equipment that were allegedly wrongfully taken by the defendant. The liquidator counterclaimed that certain transactions involving the transfer of vehicles to the plaintiffs were uncommercial and should be set aside as they occurred when Costanoza was insolvent. The court was required to decide whether the liquidator's application for summary judgment on the counterclaims should be granted, and whether the application for leave to sell the assets listed in the counterclaims should be permitted.

The court began by outlining the parties' respective claims of entitlement to the assets and the procedural history of the case. It was noted that Mr Bell had been made bankrupt, which had significant consequences for the applications. The court then examined the liquidator's application for summary judgment, considering the general principles of summary judgment and the specific provisions of the Corporations Act 2001 (Cth) relied upon by the liquidator. The court also considered the effect of Mr Bell's bankruptcy on the proceedings.

The court found that the liquidator's application for summary judgment in relation to the Allcert Vehicles and Accept Vehicles should be adjourned sine die, as Mr Bell's trustee in bankruptcy had a right to be heard in relation to those vehicles. The court also found that summary judgment should not be granted in relation to the Miller Vehicles, as there was insufficient evidence to establish that Costanoza was the purchaser. However, the court granted summary judgment to the liquidator in respect of the Lombardi Vehicles, as the transfer of the vehicles to Allcert at the request of Mr Cutts was an uncommercial transaction, and Costanoza had received nothing in return.

The court also considered the liquidator's application for leave to sell the assets listed in the counterclaims. The court found that the application should be adjourned sine die, as it was not filed on behalf of the companies, and Mr Bell's affidavit did not contain any admissible evidence relating to the liquidator's applications. The court declined to permit further time for Mr Bell to prepare any affidavits or applications on which he may wish to rely.

In conclusion, the court ordered that the plaintiffs' action be stayed under s 60(2) of the Bankruptcy Act until the trustee in Mr Bell's bankruptcy made an election in writing to prosecute or discontinue the action. The court granted summary judgment to the liquidator in respect of the Lombardi Vehicles, dismissed the liquidator's application in respect of the Miller Vehicles, and otherwise adjourned the applications sine die. The court also heard from the parties in respect of costs.

Orders