Bird v McComb (No. 2)

Case [2011] FCA 507


FEDERAL COURT OF AUSTRALIA

Bird v McComb (No. 2) [2011] FCA 507

Citation: Bird v McComb (No. 2) [2011] FCA 507
Parties: SUZANNE CHRISTINE BIRD v JOHN EDMUND MCCOMB, BRIMIN GEM PTY LTD (ACN 056 330 333), SCB HOLDINGS PTY LTD (ACN 085 917 371), CARRIAGES PTY LTD (ACN 063 116 852) and NEWTOUN PTY LTD (ACN 006 858 788)
File number(s): QUD 10 of 2011
Judge: GREENWOOD J
Date of orders: 18 April 2011
Date of publication of reasons: 17 May 2011
Catchwords:

CORPORATIONS – consideration of an application to vary orders restraining a transfer of shares in the defendant companies; changes in officers of the defendant companies or dealings in the assets of the companies

PRACTICE AND PROCEDURE - consideration of an application to vary interlocutory restraints so as to enable the defendant companies to borrow monies in the ordinary course of the business of those companies pending trial of the action

Cases cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Date of hearing: 5, 8 and 11 April 2011
Date of last submissions: 11 April 2011
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 85
Counsel for the Plaintiff: Mr A B Johnson
Solicitor for the Plaintiff: Mr P G Mylne, Mylne Lawyers
Solicitor for the Defendants: Mr D Tucker, Tucker & Cowen Solicitors

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 10 of 2011

BETWEEN:

SUZANNE CHRISTINE BIRD
Plaintiff

AND:

JOHN EDMUND MCCOMB
First Defendant

BRIMIN GEM PTY LTD (ACN 056 330 333)
Second Defendant

SCB HOLDINGS PTY LTD (ACN 085 917 371)
Third Defendant

CARRIAGES PTY LTD (ACN 063 116 852)
Fourth Defendant

NEWTOUN PTY LTD (ACN 006 858 788)
Fifth Defendant

JUDGE:

GREENWOOD J

DATE OF ORDER:

18 APRIL 2011

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.Pursuant to Order 5 of the Orders of the Court made on 18 February 2011, the Orders made that day are varied in terms of the following Orders.

2.Leave is given to the second respondent Brimin Gem Pty Ltd either alone or together with Austral Pacific Queensland Operations Pty Ltd to borrow sufficient monies in order to discharge the following obligations of Brimin Gem Pty Ltd.  First, arrears of interest payments for the months of January, February, March and April 2011 in respect of the six properties recited at para 2(b)(i) of the amended notice of motion filed 5 April 2011, namely properties located at 1 MacKeith Court, Mt Eliza; 235 Canadian Bay Road, Mt Eliza; 85 Elizabeth Avenue, Rosebud West; 3 MacKeith Court, Mt Eliza; 2 MacKeith Court, Mt Eliza; and 18 Taroona Close, Mt Eliza, being the amounts recited at para 8(c)(i) to (vi) of the affidavit of John Edmund McComb filed 29 March 2011 and bearing the date 24 February 2011.  Second, the amount represented by arrears of rates as described at paras 8(f)(i) to (vi) of the said affidavit of John Edmund McComb.  Third, the amount of $60,000 in respect of the property at 26…

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AGLC
Bird v McComb (No. 2) [2011] FCA 507
Case
[2011] FCA 507
Decision Date

CaseChat Overview and Summary

The case of Bird v McComb (No. 2) involved a dispute between Suzanne Christine Bird, the plaintiff, and various defendants including Brimin Gem Pty Ltd, Austral Pacific Queensland Operations Pty Ltd, Austral Pacific Queensland Pty Ltd, and SCB Holdings Pty Limited. The plaintiff sought to enforce certain interlocutory orders that restrained the defendants from transferring shares in their companies or dealing with their assets. The defendants, on the other hand, applied to vary these orders to allow them to borrow money in the ordinary course of their business and to discharge certain financial obligations.

The primary legal issues before the court were whether the defendants should be granted leave to borrow money to meet their financial obligations and whether certain properties could be restrained from being dealt with by the defendants pending the trial of the action. The court needed to balance the interests of the plaintiff in preserving the status quo with the defendants' need to manage their financial affairs and conduct their businesses.

The court found that the defendants should be allowed to borrow money to discharge certain financial obligations, including arrears of interest, rates, and legal fees. The court also found that certain properties should be restrained from being dealt with by the defendants pending the trial of the action. The court varied the existing orders to allow the defendants to borrow money and restrained certain properties from being dealt with by the defendants. The court also ordered the defendants to provide financial statements and taxation returns for the BM Family Trust.

In summary, the court granted the defendants leave to borrow money to meet certain financial obligations and restrained certain properties from being dealt with by the defendants pending the trial of the action. The court also ordered the defendants to provide financial statements and taxation returns for the BM Family Trust. The costs of the amended notice of motion were reserved, and the parties were given liberty to apply.

Orders

Orders of the court

1. Pursuant to Order 5 of the Orders of the Court made on 18 February 2011, the Orders made that day are varied in terms of the following Orders.

2. Leave is given to the second respondent Brimin Gem Pty Ltd either alone or together with Austral Pacific Queensland Operations Pty Ltd to borrow sufficient monies in order to discharge the following obligations of Brimin Gem Pty Ltd. First, arrears of interest payments for the months of January, February, March and April 2011 in respect of the six properties recited at para 2(b)(i) of the amended notice of motion filed 5 April 2011, namely properties located at 1 MacKeith Court, Mt Eliza; 235 Canadian Bay Road, Mt Eliza; 85 Elizabeth Avenue, Rosebud West; 3 MacKeith Court, Mt Eliza; 2 MacKeith Court, Mt Eliza; and 18 Taroona Close, Mt Eliza, being the amounts recited at para 8(c)(i) to (vi) of the affidavit of John Edmund McComb filed 29 March 2011 and bearing the date 24 February 2011. Second, the amount represented by arrears of rates as described at paras 8(f)(i) to (vi) of the said affidavit of John Edmund McComb. Third, the amount of $60,000 in respect of the property at 26 Seafarer Court, Surfers Paradise referred to at para 8(r) of the said affidavit of John Edmund McComb. Fourth, amounts in respect of legal fees described at paras 8(l) and 8(m) of the said affidavit of John Edmund McComb.

3. The first defendant and the second defendant are to file an affidavit exhibiting copies of the financial statements for the BM Family Trust for each financial year from the settlement of the trust on 25 June 1992 to the financial year ending 30 June 2005.

4. The first defendant and the second defendant are to file an affidavit exhibiting copies of the financial statements for the BM Family Trust for each financial year commencing with the financial year ending 30 June 2006 and ending with the financial year ending 30 June 2010 being financial statements adopted by Mr McComb.

5. The first defendant and the second defendant are to file an affidavit exhibiting copies of taxation returns for the BM Family Trust for each financial year from the settlement of the trust on 25 June 1992 to the financial year ending 30 June 2010 and such affidavit shall identify an estimate of the tax liability (if any) of either the BM Family Trust and Brimin Gem Pty Ltd.

6. The affidavits referred to in Orders 3, 4 and 5 are to be filed within 14 days.

7. Austral Pacific Queensland Pty Ltd as trustee of the BM Family Trust is joined in the proceedings as the sixth defendant.

8. Upon the usual undertaking as to damages proffered by the plaintiff, Suzanne Christine Bird, Austral Pacific Queensland Pty Ltd is restrained, whether by itself, its servants or agents or otherwise howsoever from dealing in or creating any interest in any person in any of the properties recited at para 8(c)(i) to (viii) and para 8(c)(ix) to (xi) of the said affidavit of Mr McComb, pending the trial of the action.

9. The parties have liberty to apply.

10. The Court notes the usual undertaking as to damages given to the Court by the plaintiff for the purposes of Order 8 of these Orders.

11. The costs of and incidental to the amended notice of motion filed 5 April 2011 are reserved.

THE COURT FURTHER ORDERS THAT:

1. Pursuant to order 5 of the Orders of the Court made on 18 February 2011, the Orders made that day are varied in terms of the following Orders.

2. Leave is given to the Third Defendant, SCB Holdings Pty Limited, to borrow sufficient moneys in order to discharge the following obligations of SCB Holdings Pty Limited:-

(a) first, arrears of interest payments for the months of January, February, March and April 2011 in respect of the two properties recited at paragraph 2(d)(i) of the Amended Notice of Motion filed 5 April 2011, namely properties located at 18-20 Walter Street, Safety Beach; 12-16 Walter Street, Safety Beach, being the amounts recited at paragraphs 9(c)(i) to (iii) of the Affidavit of John Edward McComb sworn and filed 31 March 2011;

(b) second, the amount represented by arrears of rates as described in paragraphs 9(h) of the said Affidavit of John Edward McComb.

3. The parties have liberty to apply.

Note:

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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