Cape Tribulation Reef Experiences Pty Ltd, Re - [2007] QSC 115

SUPREME COURT OF QUEENSLAND

CITATION:

Re Cape Tribulation Reef Experiences Pty Ltd [2007] QSC 115

PARTIES:

BRUCE POUNTNEY MILNER & TONY JONSSON
(receivers and managers)
and
DAVID BROWN
(director)
and
PETER DAMIAN FARRELL
(director)

FILE NO/S:

S54 of 2001 (Cairns)

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

18 May 2007

DELIVERED AT:

Supreme Court, Cairns

HEARING DATE:

10 May 2007

JUDGE:

Wilson J

ORDER:

1. It is declared that:

a) no account has been taken by the Special Referee;

b) no certificate of account has been filed by the Special Referee as required pursuant to r 540(1) of the Uniform Civil Procedure Rules.

2. That Bruce Pountney Milner be removed as Receiver and Manager of the Company with immediate effect.

3. That the costs of the Receivers and Managers, and of each of Messrs Brown and Farrell, of and incidental to this proceeding be paid out of the assets of the Company on the indemnity basis as agreed or assessed.

4. That the Receiver and Manager, or any other interested person, have liberty to apply on the giving of four days written notice to all interested persons.

5. That costs otherwise be reserved.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – OTHER MATTERS – the directors of a company in receivership consented to the court ordering that a special referee be appointed to take an account as to monies owed between the company and the directors – the account was to be taken in accordance with the provisions of the Uniform Civil Procedure Rules (UCPR) – the special referee did not produce a certificate of account, or identify which items in dispute were allowed or disallowed – whether an account was taken in accordance with the UCPR

CORPORATIONS – RECEIVERS, CONTROLLERS AND MANAGERS – OTHER MATTERS – the receivers and managers seek a declaration regarding the commercial wisdom of a proposed agreement – whether the court should make the declaration

Uniform Civil Procedure Rules 1999 (Qld) r 537, r 539, r 540

COUNSEL:

M A Jonsson for the receivers and managers
M R Hodge for David Brown (director)
H A Mellick (solicitor) for Peter Damian Farrell (director)

SOLICITORS:

Farrellys for the receivers and managers
Williams Graham Carman for David Brown (director)
Mellick Smith & Associates for Peter Damian Farrell (director)

Wilson J: By order of the Court made on 21 May 2001 Bruce Pountney Milner and Tony Jonsson were appointed as joint and several receivers and managers of the assets of Cape Tribulation Reef Experiences Pty Ltd. As I shall explain, an impasse was reached in the receivership, which led to the Court appointing David Davies-Griffith as a special referee to take an account of certain moneys.

One of the directors, David Brown, alleges that the special referee has not taken the account as ordered, and seeks declaratory relief to that effect.

The receivers and managers seek –

(a)the release of Mr Milner as a receiver and manager;
(b)a…

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.

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Details

Case: [2007] QSC 115
Decision Date: 18 May 2007

CaseChat Overview and Summary

Cape Tribulation Reef Experiences Pty Ltd was a company that had entered receivership, with Bruce Pountney Milner acting as its Receiver and Manager. The dispute centred on the procedures followed by the special referee appointed to determine the monies owed between the company and its directors. The matter was before the Supreme Court of Queensland, which was required to decide whether the account taken by the special referee adhered to the requirements of the Uniform Civil Procedure Rules (UCPR).

The court was tasked with determining whether an account was taken in accordance with the UCPR, specifically whether the special referee followed the necessary procedures to produce a certificate of account, and whether the items in dispute were adequately identified as allowed or disallowed. Additionally, the receivers and managers sought a declaration regarding the commercial wisdom of a proposed agreement. The court had to decide whether it should make such a declaration.

In its decision, the court held that no account had been taken by the special referee, and no certificate of account had been filed as required by r 540(1) of the UCPR. The court further declared that Bruce Pountney Milner be removed as Receiver and Manager of the company with immediate effect. The costs of the receivers and managers, and of each of Messrs Brown and Farrell, were to be paid out of the company's assets on the indemnity basis as agreed or assessed. The court also granted liberty to the receivers and managers, or any other interested person, to apply for further orders on the giving of four days written notice to all interested parties. The costs otherwise were reserved.

Orders

Orders of the court

1. It is declared that:

a) no account has been taken by the Special Referee;

b) no certificate of account has been filed by the Special Referee as required pursuant to r 540(1) of the Uniform Civil Procedure Rules.

2. That Bruce Pountney Milner be removed as Receiver and Manager of the Company with immediate effect.

3. That the costs of the Receivers and Managers, and of each of Messrs Brown and Farrell, of and incidental to this proceeding be paid out of the assets of the Company on the indemnity basis as agreed or assessed.

4. That the Receiver and Manager, or any other interested person, have liberty to apply on the giving of four days written notice to all interested persons.

5. That costs otherwise be reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Re Cape Tribulation Reef Experiences Pty Ltd [2007] QSC 115
PARTIES:	BRUCE POUNTNEY MILNER & TONY JONSSON (receivers and managers) and DAVID BROWN (director) and PETER DAMIAN FARRELL (director)
FILE NO/S:	S54 of 2001 (Cairns)
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	18 May 2007
DELIVERED AT:	Supreme Court, Cairns
HEARING DATE:	10 May 2007
JUDGE:	Wilson J
ORDER:	1. It is declared that: a) no account has been taken by the Special Referee; *b) no certificate of account has been filed by the Special Referee as required pursuant to r 540(1) of the Uniform Civil Procedure Rules.* 2. That Bruce Pountney Milner be removed as Receiver and Manager of the Company with immediate effect. 3. That the costs of the Receivers and Managers, and of each of Messrs Brown and Farrell, of and incidental to this proceeding be paid out of the assets of the Company on the indemnity basis as agreed or assessed. 4. That the Receiver and Manager, or any other interested person, have liberty to apply on the giving of four days written notice to all interested persons. 5. That costs otherwise be reserved.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – OTHER MATTERS – the directors of a company in receivership consented to the court ordering that a special referee be appointed to take an account as to monies owed between the company and the directors – the account was to be taken in accordance with the provisions of the Uniform Civil Procedure Rules (UCPR) – the special referee did not produce a certificate of account, or identify which items in dispute were allowed or disallowed – whether an account was taken in accordance with the UCPR CORPORATIONS – RECEIVERS, CONTROLLERS AND MANAGERS – OTHER MATTERS – the receivers and managers seek a declaration regarding the commercial wisdom of a proposed agreement – whether the court should make the declaration Uniform Civil Procedure Rules 1999 (Qld) r 537, r 539, r 540
COUNSEL:	M A Jonsson for the receivers and managers M R Hodge for David Brown (director) H A Mellick (solicitor) for Peter Damian Farrell (director)
SOLICITORS:	Farrellys for the receivers and managers Williams Graham Carman for David Brown (director) Mellick Smith & Associates for Peter Damian Farrell (director)