Community & Public Sector Union v Crown in Right of Victoria
[1999] FCA 734
•20 May 1999
FEDERAL COURT OF AUSTRALIA
Sinclair v George & Carlos Accountants & Advisers [1999] FCA 734
STEPHEN WAYNE SINCLAIR v GEORGE AND CARLOS ACCOUNTANTS AND ADVISERS & ORS
QG 12 OF 1999
SPENDER, BURCHETT and HELY JJ
20 MAY 1999
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLANDDISTRICT REGISTRY
QG 12 OF 1999
On appeal from a single judge of the Federal Court of Australia
BETWEEN:
STEPHEN WAYNE SINCLAIR
AppellantAND:
GEORGE AND CARLOS ACCOUNTANTS AND ADVISERS
First RespondentJAYSHURST PROPRIETARY LIMITED AND CHELFIELD PROPRIETARY LIMITED
Second RespondentJUDGES:
Spender, Burchett and Hely JJ
DATE OF ORDER:
20 May 1999
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The appeal is dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLANDDISTRICT REGISTRY
QG 12 OF 1999
On appeal from a single judge of the Federal Court of Australia
BETWEEN:
STEPHEN WAYNE SINCLAIR
AppellantAND:
GEORGE AND CARLOS ACCOUNTANTS AND ADVISERS
First RespondentJAYSHURST PROPRIETARY LIMITED AND CHELFIELD PROPRIETARY LIMITED
Second Respondent
JUDGES:
Spender, Burchett and Hely JJ
DATE:
20 May 1999
PLACE:
BRISBANE
REASONS FOR JUDGMENT
SPENDER J:
This is an appeal from a decision of Drummond J on 18 December 1998, in which he ordered that the application in proceedings QG175 of 1998 be dismissed with costs.
In those proceedings Mr Stephen Wayne Sinclair was the applicant. The first respondent was described as “George and Carlos Accountants and Advisers”, and the second respondent as “Jayshurst Pty Ltd & Chelfield Pty Ltd”. It appears that the naming of those two corporations as the second respondent reflects the fact that they were the family companies of each of the principals in an accounting firm, and the partnership of the two family companies conducted service arrangements for the accounting practice.
Mr Sinclair in his application in proceedings QG 175 of 1998 sought two orders. First:
"A court order appointing a receiver and manager with every power to operate the business ‘GEORGE & CARLOS, ACCOUNTANTS AND ADVISERS’; "
and secondly:
"A court order appointing a receiver to ‘JAYSHURST PTY LTD & CHELFIELD PTY LTD’ under sections 486A, 461(e) and 461(f) of the Corporations Law.”
Under the heading “Details Of Claim”, Mr Sinclair said:
“It is necessary to appoint a receiver and manager to regain the assets of Steve Carlos & Associates Pty Ltd from Steven Carlos and John George whom (sic) are presently operating the business of Steve Carlos and Associates Pty Ltd continually breaching Corporations Law trading as GEORGE AND CARLOS, ACCOUNTANTS AND ADVISERS.”
and further:
“Appoint a receiver to ‘JAYSHURST PTY LTD AND CHELFIELD PTY LTD’ to enable the provisional liquidator to obtain necessary financial records from Steven Carlos.”
On 18 December, Drummond J in very short reasons referred to the application for orders brought in reliance on ss 486A, 461(e) and 461(f) of the Corporations Law “for the appointment of a receiver and manager for three entities: firstly, George & Carlos Accountants and Advisers; secondly, Jayshurst Pty Ltd; and thirdly, Chelfield Pty Ltd”. This statement seems to misunderstand the nature of Mr Sinclair's application. In effect, Mr Sinclair wanted the appointment of a Receiver and Manager for the partnership constituted by the two companies Jayshurst Pty Ltd and Chelfield Pty Ltd.
Drummond J referred to the application for the winding up of Steve Carlos and Associates Pty Ltd by Mr Sinclair, and then stated:
“Once a winding up order is made, [in respect of the company Steve Carlos & Associates Pty Ltd] there will be a liquidator in charge of the administration of Steve Carlos and Associates Pty Ltd, who will have the full power and be duty bound to pursue the question of deprivation of the assets in question of that company.”
We are told today by Mr Sinclair that Mr Duus, the liquidator, is in the course of receiving information and evidence from Mr Sinclair in considering whether to pursue the claimed deprivation of assets that Mr Sinclair says has occurred.
The gravamen of the judgment of Drummond J is in his following remarks:
“The bases upon which Mr Sinclair relies to seek the orders appointing a receiver and manager of the three entities in action QG175 of 1998 are not available to him, only to a liquidator or a provisional liquidator. There is no reason in the material before me which comes anywhere near justifying the exceptional authority the Court has in equity to appoint a receiver and manager. The application is without substance and I will therefore dismiss it.”
In the course of his submissions before this Full Court Mr Sinclair suggested as the gravamen of his complaint that he ought to have been permitted an adjournment of the application, rather than suffer its dismissal, so that he might consider avenues available either to him under other statutory provisions or to arrange for the substitution of a competent party as applicant. No application was ever made before Drummond J for an adjournment for any purpose and, in particular, for either of the purposes that are referred to today.
The basis of the application relied on before Drummond J entitled him to conclude that it was without substance and should be dismissed.
Whatever may be the avenues available to Mr Sinclair in respect of what he claims is the wrongful misappropriation of assets that he says has occurred, nothing has been demonstrated to indicate that either order made by the primary judge was in any way in error. I would dismiss the appeal with costs.
BURCHETT J:
I agree.
HELY J:
I also agree.
SPENDER J:
The appeal is dismissed with costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Burchett & Hely. Associate:
Dated: 20 May 1999
The appellant appeared in person Counsel for the Respondents: Mr A S Kitchin Solicitor for the Respondents: Cleary Hoare Date of Hearing: 20 May 1999 Date of Judgment: 20 May 1999
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