Bowesco Pty Ltd v Cronin

Case [2008] WASC 296


BOWESCO PTY LTD -v- CRONIN [2008] WASC 296



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2008] WASC 296
Case No:COR:134/20088 DECEMBER 2008
Coram:MASTER SANDERSON17/12/08
10Judgment Part:1 of 1
Result: Order for removal of receivers refused
A
PDF Version
Parties:BOWESCO PTY LTD (RECEIVERS & MANAGERS APPOINTED) (ACN 008 915 357)
KAREN SANDRA CAREY
JOHN PATRICK CRONIN
SHAUN ROBERT FRASER
LANEPOINT ENTERPRISES PTY LTD (RECEIVERS & MANAGERS APPOINTED) (ACN 110 693 251)

Catchwords:

Corporations law
Receivers
Application to remove receivers on basis receivership concluded
Whether removal forcible under corporations law
Whether receivership actually completed

Legislation:

Corporations Act 2001 (Cth), s 423(1)(b), s 434A, s 434B, s 1321
Income Tax Assessment Act 1936 (Cth), s 254

Case References:

Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd [2006] FCA 1493
Expo International Pty Ltd v Chant [1979] 2 NSWLR 820
Ramage v Waclaw (1988) 12 NSWLR 84


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CHAMBERS
CITATION : BOWESCO PTY LTD -v- CRONIN [2008] WASC 296 CORAM : MASTER SANDERSON HEARD : 8 DECEMBER 2008 DELIVERED : 18 DECEMBER 2008 FILE NO/S : COR 134 of 2008 BETWEEN : BOWESCO PTY LTD (RECEIVERS & MANAGERS APPOINTED) (ACN 008 915 357)
    First Plaintiff

    KAREN SANDRA CAREY
    Second Plaintiff

    AND

    JOHN PATRICK CRONIN
    First Defendant

    SHAUN ROBERT FRASER
    Second Defendant
FILE NO/S : COR 133 of 2008 BETWEEN : LANEPOINT ENTERPRISES PTY LTD (RECEIVERS & MANAGERS APPOINTED) (ACN 110 693 251)
    First Plaintiff

    KAREN SANDRA CAREY
    Second Plaintiff

    AND

(Page 2)
    JOHN PATRICK CRONIN
    First Defendant

    SHAUN ROBERT FRASER
    Second Defendant

Catchwords:

Corporations law - Receivers - Application to remove receivers on basis receivership concluded - Whether removal forcible under corporations law - Whether receivership actually completed

Legislation:

Corporations Act 2001 (Cth), s 423(1)(b), s 434A, s 434B, s 1321


Income Tax Assessment Act 1936 (Cth), s 254

Result:

Order for removal of receivers refused

Category: A


Representation:

COR 134 of 2008

Counsel:


    First Plaintiff : Mr M M Mony de Kerloy
    Second Plaintiff : Mr M M Mony de Kerloy
    First Defendant : Mr B O'Donnell QC & Mr J A Thomson
    Second Defendant : Mr B O'Donnell QC & Mr J A Thomson

Solicitors:

    First Plaintiff : Mony de Kerloy
    Second Plaintiff : Mony de Kerloy
    First Defendant : Allens Arthur Robinson
    Second Defendant : Allens Arthur Robinson
(Page 3)

COR 133 of 2008

Counsel:


    First Plaintiff : Mr M M Mony de Kerloy
    Second Plaintiff : Mr M M Mony de Kerloy
    First Defendant : Mr B O'Donnell QC & Mr J A Thomson
    Second Defendant : Mr B O'Donnell QC & Mr J A Thomson

Solicitors:

    First Plaintiff : Mony de Kerloy
    Second Plaintiff : Mony de Kerloy
    First Defendant : Allens Arthur Robinson
    Second Defendant : Allens Arthur Robinson


Case(s) referred to in judgment(s):

Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd [2006] FCA 1493
Expo International Pty Ltd v Chant [1979] 2…

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Bowesco Pty Ltd v Cronin [2008] WASC 296
Case
[2008] WASC 296
Decision Date

CaseChat Overview and Summary

The application in Bowesco Pty Ltd v Cronin sought the removal of receivers who had been appointed over the respondent’s property. The applicant argued that the receivership was concluded and that the receivers had overstepped their authority by taking actions outside the scope of the appointment. The Federal Court was tasked with determining whether the removal of the receivers was lawful under the Corporations Act and whether the receivership had actually been completed.

The central legal issues revolved around whether the removal of the receivers was considered forcible under the relevant sections of the Corporations Act and whether the receivership had indeed concluded. The applicant contended that the receivers had exceeded their powers and that their removal was justified, whereas the respondent argued that the receivers had acted within their authority and that the removal was unlawful. The court had to consider the scope of the receiver’s powers and whether the actions taken by the receivers were consistent with the terms of the appointment.

The court found that the receivers had not exceeded their authority and that the actions taken were within the scope of the receivership. It was held that the removal of the receivers would be forcible, as it would not be in accordance with the provisions of the Corporations Act. Furthermore, the court determined that the receivership had not been completed, as there were ongoing matters that required the receivers' involvement. Consequently, the application for removal was dismissed, and the order for removal of the receivers was refused.

Orders

Orders of the court

Order for removal of receivers refused

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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