Constantinidis v Landcorp (NSW) Pty Ltd (in liq)
[2011] NSWSC 743
•19 July 2011
Supreme Court
New South Wales
Medium Neutral Citation: Constantinidis & Anor v Landcorp (NSW) Pty Ltd (in liq) & Ors [2011] NSWSC 743 Hearing dates: 14 July 2011 Decision date: 19 July 2011 Jurisdiction: Equity Division Before: Black J Decision: Further Amended Statement of Claim dismissed as against Third Defendant; order that monies held in Controlled Monies Account be paid to Third Defendant; stay of orders for twenty-eight days, subject to further order.
Catchwords: Effect of refusal of leave to bring proceedings against company in liquidation on basis that no serious question to be tried - monies held in Controlled Monies Account pending outcome of proceedings - stay of orders. Legislation Cited: Corporations Act 2001 (Cth) - s 471B
Real Property Act 1900 (NSW) - s 42Cases Cited: Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737 Category: Principal judgment Parties: George Constantinidis - First Plaintiff
Gemma Constantinidis - Second Plaintiff
Landcorp (NSW) Pty Ltd (in liq) - First Defendant
Robert William Whitton & Peter Grealish - Second Defendant
Donovan Oates Hannaford Mortgage Corp Ltd (R&M app) - Third Defendant
Adam Shepard - Liquidator for Third Defendant
Greg Hall, Ian England & Sam Marsden - Fourth DefendantRepresentation: Counsel:
In person - Plaintiffs
J.A. Darvall - Third Defendant
M.J. Rosenblatt (Sol) - Liquidator of Third Defendant
Solicitors:
In person - Plaintiff
Brett Scott - Third Defendant
Somerset Ryckmans - Liquidator of Third Defendant
File Number(s): 10/382398
Judgment
Background
In these proceedings, the Plaintiffs, Mr and Mrs Constantinidis, proceed against several parties under a Further Amended Statement of Claim filed 6 May 2011. The facts which give rise to this matter were summarised by Macready AsJ in an earlier judgment delivered on 31 May 2011 in these proceedings and I do not need to repeat that summary.
The First Defendant in the proceedings is Landcorp (NSW) Pty Ltd (in liquidation) (Landcorp). It appears the liquidation of Landcorp has been completed and the liquidator has filed a notice of cessation as an external administrator with the Australian Securities & Investments Commission. The Plaintiffs have informed me that Landcorp has not been served and is not intended to be served. The Second Defendant, Mr Robert Whitton and Mr Peter Grealish, were formerly the liquidators and receivers and managers for Landcorp. The Third Defendant is Donovan Oates Hannaford Mortgage Corporation Ltd (Receivers and Managers Appointed) (in liquidation) (DOHMC). The Fourth Defendant, Messrs Hall, England and Marsden, are the receivers and managers for DOHMC.
The matters which were dealt with when the matter was listed before me on 14 July 2011 were, first, a claim for costs by Mr Adam Shepard, the liquidator for DOHMC, against the Plaintiffs; second, an application brought by DOHMC for dismissal of the proceedings against it and consequential orders; third, an application by the Plaintiffs for leave to examine a subpoenaed witness; fourth, an application for an adjournment made by the Plaintiffs in the course of submissions; and, fifth, issues as to the service of the Further Amended Statement of Claim on Mr Whitton and the Fourth Defendant. I will deal with each of these issues in turn.
Liquidator's application for costs
The first matter which is before me is an application for costs brought by Mr Shepard who, as I noted above, is the liquidator for DOHMC. By way of background to this application, Mr Mark Ryckmans, a solicitor who acts for Mr Shepard, swore a short affidavit on 16 May 2011 which was read in support of DOHMC's opposition to an application by the Plaintiffs for leave to continue the proceedings against it under s 471B of the Corporations Act (which was heard by Macready AsJ on 18 May 2011) (471B Application) and was cross examined by the Plaintiffs in respect of that affidavit. At that point, Mr Ryckmans was not appearing for a party to the proceedings but was a witness in them.
When this matter was listed before Macready AsJ on 11 July 2011, Mr Shepard's solicitors foreshadowed an application that the Plaintiffs should pay the costs of Mr Ryckmans' giving evidence and being cross examined in the 471B Application. When the matter was listed before me, Mr Rosenblatt, who appeared for Mr Shepard, put a somewhat wider application that the Plaintiffs should pay the liquidator's costs of the proceedings which he made clear were not confined to the costs of Mr Ryckmans' giving evidence or being cross examined in the 471B Application.
Mr Rosenblatt contended that the Plaintiffs should be ordered to pay those wider costs because Mr Shepard has statutory duties to creditors and was required to attend to the proceedings in the performance of those statutory duties. Mr Darvall, who appears for DOHMC in the proceedings, submitted that the proceedings had been defended by DOHMC through its legal representatives (I interpolate, presumably acting on the instructions of the receivers and managers appointed to it) and that, so far as he was aware, the extent of Mr Shepard's involvement was his consideration of the position with respect to the 471B Application, the preparation of Mr Ryckmans' affidavit and the attendance of Mr Ryckmans for cross examination on that application.
Mr Shepard's application for costs was strongly opposed by the Plaintiffs who expressed concern at the proposition that they could be liable for separate costs in respect of both the legal representatives of DOHMC appearing in the proceedings and Mr Shepard in respect of the proceedings.
I accept, of course, that Mr Shepard has statutory duties to perform. However, no evidence was led before me to establish the basis of any view which Mr Shepard held that it was necessary for him to take an active role in these proceedings or the extent of any involvement he has had in them in taking such a role, beyond the fact that, as noted above, Mr Ryckmans swore an affidavit in DOHMC's case and was cross examined in the 471B Application. To the extent that Mr Shepard has incurred costs in respect of the proceedings generally, it is not clear to me why the Plaintiffs should be required to pay those costs in respect of unidentified activities and in circumstances that the proceedings are not yet finally determined. I do not consider it appropriate to accede, at least at this stage, to Mr Shepard's application that the Plaintiffs should pay his costs of the proceedings generally.
In submissions before me, Mr Rosenblatt did not advance any narrower application in respect of the particular costs of Mr Ryckmans' giving evidence and being cross examined in the 471B Application, of the kind that had originally been foreshadowed before Macready AsJ. I need not and should not seek to determine a narrower application of that kind, because it was not made before me and the Plaintiffs have not had any opportunity to respond to it.
DOHMC's motion
I turn now to the Motion filed by DOHMC, which seeks:
(1) an order that the Amended Statement of Claim filed 6 May 2011 be dismissed as against it;
(2) an order that the funds held in the controlled moneys account in the name of Brett Scott, solicitor, as Trustee under the Contract for Sale dated 25 February 2011 between the Third Defendant as vendor and A.S.P.E.C.T. Australian South Pacific Educational and Commercial Training Incorporated as purchaser be paid to DOHMC; and
(3) an order that the Plaintiffs pay the costs of DOHMC of the proceedings including this Notice of Motion as agreed or assessed.
I note that Mr Constantinidis relied on an affidavit dated 12 July 2011 in respect of an issue as to service arising in the proceedings. Possibly as a consequence of the order in which matters were addressed in the hearing before me, that affidavit was not read in respect of the Motion filed by DOHMC. So far as its content is relevant to that Motion, I would have admitted it as submissions in respect of the Motion. I have had regard to the matters raised by Mr Constantinidis in that affidavit by way of submission so that the Plaintiffs will suffer no disadvantage arising from the order in which matters were addressed in the hearing before me.
The background to DOHMC's Motion is as follows. A dispute arose as to the circumstances surrounding Landcorp's failure to complete the sale of a commercial unit in a development in Bryant Street, Rockdale, NSW, to the Plaintiffs. It appears that the Plaintiffs subsequently registered a caveat over that unit and proceedings were commenced in respect of that caveat. Counsel for DOHMC, in outlining the history of the matter, indicated that the Plaintiffs subsequently indicated they would withdraw the caveat if the amount which had previously been paid by the deposit to Landcorp were held in a controlled moneys account and the parties entered a contract for sale dated 25 February 2011 (Sale Contract) on that basis.
Relevantly, clause 31 of the Special Conditions to the Sale Contract provides as follows:
"31. At the date hereof the Purchaser acknowledges that the full deposit and the balance of purchase monies (excluding any adjustments to be made on completion) shall be paid into a controlled account to be opened by the vendor's solicitor, Brett Scott ... and those funds are to be retained in the controlled account ... pending an Order to release them to the Vendor after Judgment and Orders made pursuant to the proceedings in the Supreme Court Equity Division 382398/2010 between George Constantinidis as First Plaintiff, Gemma Constantinidis as Second Plaintiff and the Vendor as the Third Defendant. Any interest which accrues on these monies will be paid to the Vendor. If an order is made that there is a dollar amount payable to the Purchaser pursuant to their Statement of Claim and the Judgment, then the Purchaser will be entitled to part of the interest accrued thereon calculated on the proportion of the payment to the Purchaser in relation to the whole deposit (pari passu)."
As I noted above, on 6 May 2011, the Plaintiffs filed a Further Amended Statement of Claim which sought orders against, inter alia, DOHMC. Justice Windeyer subsequently ordered a separate question to be determined in respect of those proceedings, namely whether the Plaintiffs had leave to proceed against, relevantly, DOHMC under s 471B of the Corporations Act 2001 (Cth) which was required because that entity was in liquidation. The 471B Application was determined by Macready AsJ on 31 May 2011, who declined to grant leave to continue the proceedings under that section. I will return to the basis of that decision below.
As I understand it, DOHMC now seeks an order for dismissal of the proceedings against it on the basis that, first, the Plaintiffs do not have leave to continue the proceedings against it; in those circumstances, the proceedings against it cannot be continued and there cannot be a judgment in favour of the Plaintiffs as against DOHMC in these proceedings; the matter should therefore not be left in the Court's list as against DOHMC indefinitely in circumstances where it cannot be resolved in favour of the Plaintiffs as against DOHMC and should be dismissed as against DOHMC; and that the consequence of dismissal of the proceedings as against the DOHMC is that the moneys (Controlled Moneys) held in the Controlled Moneys Account should be released to DOHMC in accordance with clause 31 of the Sale Contract. The orders sought by DOHMC are opposed by the Plaintiffs.
I have given careful consideration to the basis of the judgment delivered by Macready AsJ on 31 May 2011 in reaching my decision as to DOHMC's Motion. I am conscious that the Sale Contract plainly contemplated that the determination of whether the Plaintiffs or DOHMC are entitled to the moneys held in the Controlled Moneys Account would be made in these proceedings. For that reason, I would not have made an order dismissing the proceedings as against DOHMC had the only basis of Macready AsJ's judgment been a view that the Plaintiffs could proceed by way of lodging a proof of debt in DOHMC's liquidation. However, I do not understand that to be the primary basis of Macready AsJ's judgment.
His Honour summarised the claim against DOHMC and noted Mr Constantinidis' affidavit evidence outlining the allegations made against DOHMC as to conduct that, it is alleged, meant that the amount received on realisation of the project was less than the amount owing to DOHMC. His Honour noted the matters raised by DOHMC in response, including that the letters on which the Plaintiffs rely as giving rise to their original contract with Landcorp to purchase the unit does not sufficiently identify it so as to constitute a memorandum of agreement for sale; that the caveat lodged by the Plaintiffs also did not identify the claimed unit; that DOHMC was a registered mortgagee over the property and it was not alleged that it had consented to the agreement for sale between the Plaintiffs and Landcorp or agreed to be bound by it; and the Plaintiffs did not allege fraud for the purposes of s 42 of the Real Property Act 1900 (NSW). His Honour noted that the Plaintiffs' claim sought to avoid several of those responses by seeking to establish that no amount was owing to DOHMC and it was not entitled to retain its security.
However, his Honour found that the Plaintiffs could not establish any right to purchase the unit arising from their original contract with Landcorp, having regard to the deficiencies in the description of the property in the correspondence on which they rely to seek to establish that right, and had not established a serious question to be tried. The Plaintiffs have not, in the course of argument before me, identified any further matter which would address the deficiencies identified by his Honour so as to give rise to a serious question to be tried in their case against DOHMC.
Since Macready AsJ has found that the Plaintiffs have not established a serious question to be tried in their case against DOHMC and they do not have leave to continue the proceedings as against DOHMC, I do not consider that it would be appropriate to leave the proceedings against DOHMC on foot, where there is no identified further step which could allow them to be resolved in the Plaintiffs' favour. I should add that it would not, in my view, be in the Plaintiffs' interests for the proceedings to remain on foot as against DOHMC where they could not be resolved in the Plaintiffs' favour against DOHMC, since that could require DOHMC to continue to incur legal costs in monitoring the proceedings for which the Plaintiffs would potentially be liable. In these circumstances, I consider it is appropriate to make an order dismissing the Further Amended Statement of Claim as against DOHMC.
I understand clause 31 of the Sale Contract to be directed to the outcome of the proceedings as between the Plaintiffs and DOHMC, and I note that DOHMC was party to the proceedings and relief was sought against it in them at the time the Sale Contract was formed. I can see no basis on which the intention of the parties, objectively construed, would have been that the Controlled Moneys would not be released to DOHMC if the proceedings against it were dismissed, simply because these proceedings remained on foot against other parties. There would be no commercial logic in that result, since judgment against another party would not trigger a right to payment to the Plaintiffs from the Controlled Moneys Account.
Having regard to the terms and evident commercial purpose of clause 31 of the Sale Contract, the consequence of my order dismissing the proceedings against DOHMC is that I should also make an order that the funds held in the Controlled Moneys Account in the name of Brett Scott, solicitor, as Trustee under the Sale Contract be paid to DOHMC.
DOHMC's application for costs
As noted above, DOHMC's Motion also sought an order that the Plaintiffs pay the costs of DOHMC of the proceedings including this Notice of Motion as agreed or assessed. Counsel for DOHMC put this submission on the basis that costs should follow the event.
The Plaintiffs oppose an order for costs on the basis that, inter alia, there was delay by DOHMC in requesting the release of the Controlled Moneys. I do not consider that submission is well founded. First, the outcome of the 471B Application was relevant to any application for dismissal of the proceedings and consequential order for release of the Controlled Moneys by DOHMC; second, DOHMC's solicitors promptly requested the release of those moneys after that application was heard; and, third, the submissions made by the Plaintiffs make clear that they would not have consented to an order for release of the Controlled Moneys, even if it had been sought at an earlier point.
However, I am not satisfied that I should make an order in favour of costs of the proceedings generally in favour of DOHMC. I have referred above to issues arising in an earlier stage of the proceedings in respect of a caveat lodged by the Plaintiffs. No submissions have been made before me which would indicate whether the Plaintiffs would, or would not, have sustained the caveat had agreement to its withdrawal not been reached in the manner I outlined above. I do not consider that the usual principle that costs follow the event establishes that the Plaintiffs should be liable for costs of those earlier parts of the proceedings which appear to have led to the entry into the Sale Contract without any determination against the Plaintiffs or in favour of DOHMC as to any issues arising from the lodgement of the caveat.
It appears that a further stage of the proceedings commenced on 4 April 2011, when Macready AsJ dealt with an application by the Plaintiffs for leave to file the Further Amended Statement of Claim. The matter was again listed before Windeyer AJ on 29 April 2011, when his Honour determined that the 471B Application should be heard as a separate issue prior to the hearing and determination of the other issues in the proceedings. That matter was argued before Macready AsJ on 18 May 2011 and his Honour delivered judgment on 31 May 2011. The Plaintiffs were not granted leave to continue the proceedings against DOHMC and I have, for the reasons noted above, formed the view that the proceedings should now be dismissed as against DOHMC. The principle that costs follow the event supports an order that the Plaintiffs should pay DOHMC's costs of this further stage of the proceedings.
There is a second and further reason for such an order in respect of DOHMC's costs of and associated with the Motion filed 22 June 2011. By letters dated 18, 24 and 25 May 2011, DOHMC requested that the Plaintiffs acknowledge that DOHMC was entitled to payment of the funds held in the Controlled Moneys Account if Macready AsJ declined to grant leave for the proceedings to be continued against DOHMC, but the Plaintiffs did not do so. The Plaintiffs have made clear, in the course of their submissions before me, that they had communicated their opposition to payment of the funds to DOHMC's representatives and they maintained that opposition in submissions before me, as they were entitled to do. However, the Plaintiffs' opposition to that course required DOHMC to file and pursue the Motion which I have now determined in DOHMC's favour and, that opposition having failed, that provides a further basis for an order that the Plaintiffs pay DOHMC's costs of and associated with DOHMC's Motion filed 22 June 2011.
I therefore consider that it is appropriate that I order that the Plaintiffs pay DOHMC's costs of and associated with (1) the application for leave to file the Further Amended Statement of Claim, (2) the 471B Application and (3) the Motion filed by DOHMC on 22 June 2011 seeking dismissal of the proceedings as against DOHMC and an order that the relevant funds be paid out to it. It may be that the order for costs should simply provide that the Plaintiffs pay DOHMC's costs of the proceedings since 4 April 2011. I will, however, grant leave to each party to make any written submissions which they wish to make as to the form of that order. I direct that DOHMC deliver a draft order and any written submissions it wishes to put as to the form of that order to my Associate by 4pm on Friday 22 July 2011; that the Plaintiffs deliver any written submissions that they wish to put in response to my Associate by 4pm on Friday 29 July 2011; and that DOHMC deliver any submissions in response to my Associate by 4pm on Wednesday 3 August 2011.
Two other matters
I should address two other matters which arose in the course of argument as to the Motion brought by DOHMC. First, the Plaintiffs sought to lead oral evidence from Mr Hannaford, who was associated with DOHMC and who attended the court on subpoena. Mr Constantinidis identified the matters to which that evidence would relate as involving issues as to dealings between the Landcorp and DOHMC; the sale of certain properties by Landcorp which Mr Constantinidis contends were sold at undervalue with the blessing of third parties; and an allegation of equitable fraud in respect of the circumstances surrounding certain units in the property which is alleged by Mr Constantinidis to have involved a former director of Landcorp.
These issues are not relevant in these proceedings in any case against Landcorp since, as I noted above, that entity has, it appears, been deregistered after the completion of its liquidation and has not been served with these proceedings. In my opinion, these issues are also not relevant in the motion brought by DOHMC, since the Plaintiffs have not been granted leave to continue the proceedings against DOHMC and the issues to be addressed before me in respect of DOHMC were whether the proceedings against DOHMC should be dismissed for that reason, not the merits of any proceedings against DOHMC had leave been granted to continue them. I express no view as to whether those matters will ultimately be relevant in the future to the case brought against the second defendants or the fourth defendants which do not appear, presumably because they do not accept that proceedings have been effectively served upon them. I will address that issue further below. In these circumstances I did not grant leave to the Plaintiffs to call evidence from Mr Hannaford and he was excused.
Second, in the course of submissions as to DOHMC's motion, the Plaintiffs argued that they did not understand the nature of the application which DOHMC brought and sought an adjournment of that application to a future date. I adjourned that matter over a longer period than usual over the lunch period but did not adjourn the matter to a future date as sought by the Plaintiffs. I should record my reason for taking that approach.
As I have noted above, before filing the motion which was listed before me, DOHMC had written to the Plaintiffs on several occasions seeking their consent to the release of the Controlled Moneys. DOHMC's notice of motion was filed in these proceedings on 22 June and the orders that were sought in that notice of motion were clear on their face. They were supported by an affidavit of Tristan Murray sworn 30 May 2011 which annexed the previous correspondence between the Plaintiffs and DOHMC.
When, in the course of submissions, Mr Constantinidis suggested that he did not understand the nature of DOHMC's application, I sought to summarise that application for his assistance having regard to the content of DOHMC's notice of motion, the supporting affidavit and the oral submissions put by Counsel for DOHMC in support of the motion. Counsel for DOHMC confirmed that that summary accurately reflected the nature of DOHMC's application. I offered the Plaintiffs the opportunity of a longer lunch adjournment if that would assist them in preparing further for any submissions they wished to make in opposition to the motion. Mr Constantinidis initially advised me that he did not require as much time as that, Mrs Constantinidis then sought an adjournment to another date and Mr Constantinidis then adopted that submission.
The Plaintiffs point to a particular issue as supporting an adjournment. They suggest they have been misled as to the capacity in which DOHMC appears and as to the role of its representatives and they draw my attention to an exhibit to the affidavit of Mr Constantinidis sworn 12 July 2011. I read that annexure without requiring that Mr Constantinidis' affidavit be formally read for that purpose. In this regard:
- I accept that the Plaintiffs may have read a request made by the receivers of DOHMC, in late January 2011, that communications from the Plaintiffs be directed to Mr Scott rather than the receivers personally as indicating that Ms Scott acted for the receivers personally, although I regard that request as equally consistent with the position which appears from the Court file, that Mr Scott acts for DOHMC to which the receivers have been appointed.
- The notice of appearance filed for DOHMC in the proceedings makes clear that Mr Scott represents DOHMC in the proceedings. No notice of appearance has been filed by Mr Scott (or any other legal representative) for the receivers personally in the proceedings.
- Counsel for DOHMC fairly acknowledged in submissions that Mr Scott also receives instructions from the receivers of DOHMC in conveyancing matters, but pointed out that Mr Scott does not represent them in their personal capacities in these proceedings and they will be represented by other solicitors in the proceedings.
In any event, it does not appear to me that the issue whether Mr Scott appears for the receivers personally has any relevance to the merits of DOHMC's motion listed before me or that any uncertainty of the Plaintiffs as to that issue could adversely affect the Plaintiffs' ability to address any relevant matter in respect of that motion.
For these reasons, I adjourned the matter for a longer lunch break to allow the Plaintiffs the opportunity to consider the nature of DOHMC's application as put in oral submissions made by DOHMC's Counsel and to allow them a proper opportunity to respond to that application but did not adjourn the matter to a future date as they requested. Mr Constantinidis returned to Court after the lunch break and Mrs Constantinidis did not.
At the conclusion of submissions in respect of DOHMC's application, Mr Constantinidis submitted that, should I reach a decision in favour of DOHMC, the Plaintiffs requested a stay of the orders which I made for twenty-eight days to allow them to reach a decision as to the next steps which they will take. The principles to be applied in determining an application for a stay by an unsuccessful party are set out in Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737. Mr Constantinidis did not seek to address any of those factors as supporting an application for a stay and it may have been difficult for him to address at least some of those factors until after my judgment was delivered.
DOHMC has succeeded in its motion before me and is prima facie entitled to the fruits of that judgment. On the other hand, there is no risk to DOHMC that the amount in issue will be lost if a stay is granted, since the moneys would remain held in the Controlled Moneys Account. There may be a question whether any appeal would be rendered nugatory if a stay is not granted, if it were likely that DOHMC would disburse the funds if they were paid to it, but no submissions have been made to me as to that matter.
In the present circumstances, I think it appropriate to protect the Plaintiffs at least against the risk that the moneys are released to DOHMC and immediately disbursed before the Plaintiffs have had an opportunity to consider whether they wish to appeal from this judgment, noting that there appears to be no substantial disadvantage to DOHMC in my granting a stay for a short period where the moneys will continue to earn interest while held in the Controlled Moneys Account. I therefore propose to stay the orders which I have made in respect of the motion for twenty-eight days, on the basis that each party has the opportunity to restore the matter on two days notice if it seeks to make further submissions as to whether that stay should be lifted. I note that the Plaintiffs would need to make further application, in such forum as they consider appropriate and supported by appropriate materials, should they seek to continue that stay beyond that period. The Plaintiffs might well be assisted by independent legal advice in considering whether to bring any such application but that is, of course, a matter as to which they are entitled to reach their own decision.
Service of proceedings on the Second and Fourth Defendants
The final issue which arose before me in the course of the hearing was the status of service of the proceedings so far as the Second and Fourth Defendants were concerned.
So far as the Second Defendant is concerned, Mr Constantinidis' evidence was that his wife attempted to serve the proceedings on the first-named Second Defendant, Mr Whitton, at his office and was unable to do so. Mr Whitton does not appear today, presumably because he takes a point that the proceedings have not been validly served upon him, and I do not have any evidence from him responding to the Plaintiffs' account of this matter. I do not think it appropriate that the Plaintiffs should be further delayed in achieving a determination of the merits of these proceedings by difficulty with effecting service of the proceedings upon Mr Whitton. Accordingly, I have made orders for substituted service of the proceedings upon Mr Whitton, by delivery of the Further Amended Statement of Claim to his reception or receptionist pursuant to r 10.14 of the Uniform Civil Procedure Rules. Mr Constantinidis had advised me that the Plaintiffs do not presently seek similar orders in respect of the second-named Second Defendant, Mr Peter Grealish, who has still to be located by Plaintiffs.
A similar issue as to effectiveness of service arose in respect of the three named Fourth Defendants, Messrs Hall, England and Marsden. Mr Constantinidis' evidence was that a copy of the proceedings had been served at the reception desk of the firm with which those persons are associated, whereas Counsel for DOHMC informed me from the bar table that the Fourth Defendant's position was that they had not received a copy of the proceedings. It was not necessary for me to make orders in respect of this matter because Messrs Hall, England and Marsden have now authorised the solicitors who appear for DOHMC to accept service of the proceedings brought against them, on the limited basis that those solicitors would do no more than ensure that the relevant documents were made available to Messrs Hall, England and Marsden who will be separately represented in respect of the proceedings.
I have set out my reasons in paragraphs 4-9 above for not acceding to an application for costs made by the liquidator of DOHMC above and have also set out a proposed costs orders and a timetable for further submissions as to the form of the costs order to be made in favour of DOHMC in paragraph 27 above. I otherwise order that:
(1) The Further Amended Statement of Claim filed 6 May 2011 be dismissed against the Third Defendant.
(2) The funds held in the controlled moneys account in the name of Brett Scott, solicitor, as Trustee under the Contract for Sale dated 25 February 2011 between the Third Defendant as vendor and A.S.P.E.C.T. Australian South Pacific Educational and Commercial Training Incorporated as purchaser be paid to the Third Defendant.
(3) Subject to further order, Orders 1 and 2 be stayed for a period of 28 days.
(4) All parties have liberty to apply on 2 days' notice.
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Decision last updated: 19 July 2011
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