Community Association DP 270261 v Powerwealth Property Holdings Pty Ltd

[2008] FCA 684

FEDERAL COURT OF AUSTRALIA

Community Association DP 270261 v Powerwealth Property Holdings Pty Ltd

(ACN 101 777 959) [2008] FCA 684

COMMUNITY ASSOCIATION DP 270261 v
POWERWEALTH PROPERTY HOLDINGS PTY LTD (ACN 101 777 959)

NSD 53 OF 2008

LINDGREN J
16 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 53 OF 2008

IN THE MATTER OF POWERWEALTH PROPERTY HOLDINGS PTY LTD
(ACN 101 777 959)

BETWEEN: COMMUNITY ASSOCIATION DP 270261
Plaintiff

AND: POWERWEALTH PROPERTY HOLDINGS PTY LTD
(ACN 101 777 959)
Defendant

JUDGE:	LINDGREN J
DATE OF ORDER:	9 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application brought by Yuri Sepulveda by interlocutory process filed on 2 May 2008 be dismissed.

2.The plaintiff’s costs on Mr Sepulveda’s application be added to the sum of $7,300.36, the subject of order 3 made on 2 May 2008 so as also to be part of the plaintiff’s costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 53 OF 2008

IN THE MATTER OF POWERWEALTH PROPERTY HOLDINGS PTY LTD
(ACN 101 777 959)

BETWEEN: COMMUNITY ASSOCIATION DP 270261
Plaintiff

AND: POWERWEALTH PROPERTY HOLDINGS PTY LTD
(ACN 101 777 959)
Defendant

JUDGE:	LINDGREN J
DATE:	16 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 2 May 2008, Registrar Hedge made orders that the defendant be wound up, that Mitchell Ball be appointed liquidator, and that the plaintiff’s costs of the proceeding be fixed in an amount of $7,300.36.

2. Later on the same day, Yuri Sepulveda, the only director and shareholder of the defendant, filed an interlocutory process in the proceeding seeking the following order:

   1.That this Application of this order be held in Instanter that the winding up of Powerwealth Property Holdings Pty Ltd be stayed pending a hearing of the following order.  [sic]

3. Mr Sepulveda’s application came before me as Corporations Duty Judge on 9 May 2008.  I dismissed his application.  These are my reasons for doing so.

4. Ms S Myers, solicitor, appeared for the plaintiff.  The plaintiff had applied for the winding up of the defendant on the ground of insolvency relying on its status as a creditor of the defendant.

5. Mr M Vassili, solicitor, appeared for Mr Sepulveda, but only for the purpose of applying for an adjournment.  He made it clear that his instructions went no further.

6. Mr Vassili said that Mr Sepulveda was not able to attend Court because he was sick.  No evidence of his sickness was produced and no details given.  I refused the application for the adjournment.  The hearing then proceeded without Mr Sepulveda being present either in person or through a legal representative.

7. There is a real question as to the meaning of the order sought by Mr Sepulveda. Ms Myers said she understood that Mr Sepulveda was applying for a review of Registrar Hedge’s decision. The other possibility is that Mr Sepulveda was applying under s 482 of the Corporations Act 2001 (Cth) for an order staying the winding up.

8. If Mr Sepulveda’s application was to be regarded as an application under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (the Act) for review of the exercise of power by the Registrar, it was incompetent because Mr Sepulveda was not a party to the proceeding before the Registrar.

9. If Mr Sepulveda’s application was to be regarded as an application for a stay of the winding up under s 482 of the Act, it is competent because Mr Sepulveda was a “contributory” (see s 482(1A)(a)).

10. I did not need to resolve the question.  Rather, I dismissed Mr Sepulveda’s interlocutory application under O 32 r 2(1)(c) of the Federal Court Rules because Mr Sepulveda was absent.

11. Ms Myers sought an order for costs.  Should an order for costs be made against Mr Sepulveda?  Should there be an order that the plaintiff’s costs of resisting Mr Sepulveda’s application be added as part of the plaintiff’s costs of the proceeding?  I thought that the plaintiff had to appear in order to defend Registrar Hedge’s orders of 2 May 2008.  For that reason, I ordered that the plaintiff’s costs of resisting the interlocutory application be added as part of the plaintiff’s costs of the proceeding.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:        16 May 2008

Solicitor for plaintiff:	Ms S Myers of Bannermans Lawyers
Solicitor for the defendant:	Mr M Vassili of Vassili Fozzard Lawyers & Consultants Pty Limited
Date of Hearing:	9 May 2008
Date of Judgment:	16 May 2008