Copeland (liquidator) v Odeesh, in the matter of FBF Transport Pty Ltd (in liq)
[2024] FCA 1136
•26 September 2024
FEDERAL COURT OF AUSTRALIA
Copeland (liquidator) v Odeesh, in the matter of FBF Transport Pty Ltd (in liq) [2024] FCA 1136
File number: NSD 1347 of 2024 Judgment of: STEWART J Date of judgment: 26 September 2024 Catchwords: CORPORATIONS – application for issue of warrant under s 530C of the Corporations Act 2001 (Cth) – ex parte application – leave to have warrant issued – evidence defendant has not cooperated in refraining from making use of or delivering up property of the company in liquidation to the plaintiff liquidator
PRACTICE AND PROCEDURE – suppression orders – whether necessary to prevent prejudice to the proper administration of justice
Legislation: Corporations Act 2001 (Cth), s 530C
Federal Court of Australia Act 1976 (Cth), s 37AF
Federal Court Rules 2011 (Cth), rr 2.32(1)(b), (3)(a), 14.11(1)(a)
Cases cited: Carello (liquidator), in the matter of Drilling Australia Pty Ltd (in liq) [2019] FCA 1563; 139 ACSR 187
Tang (liquidator) v Wright, in the matter of Wright’s Transport Pty Ltd (in liq) [2020] FCA 709
Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 11 Date of hearing: 26 September 2024 Counsel for the Plaintiffs: J Parrish Solicitor for the Plaintiffs: Hilton Bradley Lawyers ORDERS
NSD 1347 of 2024 IN THE MATTER OF FBF TRANSPORT PTY LTD (IN LIQ)
BETWEEN: BRENDAN COPELAND IN HIS CAPACITY AS LIQUIDATOR OF FBF TRANSPORT PTY LTD (IN LIQ)
First Plaintiff
FBF TRANSPORT PTY LTD (IN LIQ)
Second Plaintiff
AND: ALFREDO BASHAR ODEESH
Defendant
ORDER MADE BY:
STEWART J
DATE OF ORDER:
26 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The District Registrar issue, pursuant to s 530C of the Corporations Act 2001 (Cth), a warrant substantially in the form of the warrant appearing at Annexure A to these orders.
2.The originating process be returnable immediately and heard ex parte.
3.Until further order or discharge of this order pursuant to order 5 below, all documents filed in the proceeding be confidential as referred to in rr 2.32(1)(b) and (3)(a) of the Federal Court Rules 2011 (Cth).
4.Within 7 days of the last date on which the warrant has been executed, the plaintiffs file an affidavit reporting on the execution of the warrant.
5.On the filing of the affidavit referred to in order 4, order 3 shall be discharged.
6.Within 2 days of the filing of the affidavit referred to in order 4, the plaintiffs serve on the defendant the originating process, the affidavits of Brendan Copeland dated 25 September 2024 and 26 September 2024, a copy of the orders made in the proceeding, and any reasons for judgment.
7.Pursuant to r 14.11(1)(a) of the Rules, the defendant deliver up to the plaintiffs (or their agents) custody of any vehicles not obtained following execution of the warrant at a time and place notified by the plaintiffs to the defendant in writing within 1 business day of the plaintiffs serving the documents in accordance with order 6.
8.The matter be listed for case management before the Commercial and Corporations Duty Judge at 9.30am on 18 October 2024, or before such other judge or at such other time as the Court may direct.
9.There be liberty to the defendant to apply to re-list the proceeding before the Commercial and Corporations Duty Judge on reasonable notice.
10.Costs be reserved.
11.The orders be entered forthwith
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
“A”
Warrant
No. NSD1347 of 2024
Federal Court of Australia
District Registry: New South WalesDivision: Corporations
Brendan Copeland in his capacity as liquidator of FBF Transport Pty Ltd (In Liquidation) ACN 657 052 634
First Plaintiff
FBF Transport Pty Ltd (In Liquidation) ACN 657 052 634
Second Plaintiff
Alfredo Bashar Odeesh
Defendant
WARRANT FOR SEARCH AND SEIZURE
TO:Brendan Copeland in his capacity as liquidator of FBF Transport Pty Ltd (In Liquidation) ACN 657 052 634, with such assistance from special members of the Australian Federal Police and to all officers of the police force of the State or Territory in which the vehicles (as described below) are found, and to the Sheriff of that State or Territory and all of that Sheriff’s officers.
WHEREAS, on the application of Brendan Copeland in his capacity as liquidator of FBF Transport Pty Ltd (In Liquidation) ACN 657 052 634 (Liquidator) and of FBF Transport Pty Ltd (In Liquidation) ACN 657 052 634 (Company), the Court is satisfied that Alfredo Bashar Odeesh (the Defendant), has concealed or removed:
a.the 2014 Volvo FH16 Prime Mover with VIN number YV5RP80D2ED200682;
b.the 2020 Toyota Prado with VIN number JTEBR3FJ00K181794;
c.the 2020 Toyota Hilux with VIN number MR0HA3CDX00450627;
d.the 1994 Freighter Trailers Trailer SMT with VIN number 6F8T25003RB054538;
e.the 2022 Mercedez-Benz CLA250 with VIN number W1K1183472N272692; and
f.the 2016 Scania R560 with VIN number YS2R6X40005400276.
The above six vehicles (the Vehicles) being property of the Company, and with the result that the taking of the Vehicles into the custody or the control of the Liquidator has been and will be prevented or delayed.
YOU ARE HEREBY AUTHORISED, with such assistance as is reasonably necessary from the Australian Federal Police and to all officers of the police force of the State or Territory in which the Vehicles are found, and to the Sheriff of that State or Territory and all of that Sheriff’s officers and staff, to search for and seize the Vehicles which are in the possession, custody or control of the Defendant, and to hold possession of the Vehicles until otherwise directed by order of this Court.
AND YOU ARE AUTHORISED in order to seize the Vehicles under this warrant to break open a building, room or receptacle where the Vehicles are located, or where you reasonably believe the Vehicles may be located.
Date: 26 September 2024
. . . . . . . . . . . . . . . . . . . . .
District Registrar
REASONS FOR JUDGMENT
(Delivered ex tempore)
STEWART J:
Brendan Copeland is the liquidator of FBF Transport Pty Ltd. He applies for a warrant for the seizure and delivery up of six motor vehicles that apparently belong to the company. The application is brought in the first instance pursuant to s 530C of the Corporations Act 2001 (Cth), and secondly, to the extent that any of the vehicles are not retrieved under the warrant, under r 14.11(1)(a) of the Federal Court Rules 2011 (Cth).
The company was wound up in insolvency by order of the Supreme Court of Victoria on 21 August 2024. Prior thereto, it carried on a transport business. The defendant, Alfredo Odeesh, is the company’s sole director, secretary and shareholder. He resides at a property in Bossley Park in New South Wales. That address is also the company’s registered office and principal place of business.
Mr Copeland has identified six vehicles that, on the evidence presently available, appear to belong to the company. They are a 2014 Volvo FH16 Prime Mover, a 2020 Toyota Prado, a 2020 Toyota Hilux, a 1994 Freighter Trailers Trailer SMT, a 2022 Mercedes-Benz CLA250, and a 2016 Scania R560. Mr Copeland has thus far not been able to take possession of the vehicles. They appear to be in the possession of the defendant. In that regard, the Volvo, the Scania and the Hilux have been identified and photographed at the property already mentioned.
Since Mr Copeland’s appointment, he has made several requests of the defendant for access to the company’s books and records and delivery up of the vehicles, and failing delivery up of the vehicles, an undertaking from the defendant that he will not deal with or dispose of them. Although at one point at a meeting on 5 September 2024 the defendant gave indications of co-operation, he has otherwise failed to give any assistance or cooperation to Mr Copeland. He has not delivered up the company’s books and records or the vehicles, and he has not given the undertaking requested. Neither has he given details of the location of the vehicles or their odometer readings to enable Mr Copeland to value them. With some justification, Mr Copeland apprehends that the defendant may take steps to alienate the vehicles and thereby place them beyond the reach of the liquidation. Indeed, the defendant may already have taken such steps in relation to one or more of the vehicles.
Section 530C of the Corporations Act gives the Court the power to issue a warrant authorising a specified person, with such assistance as is reasonably necessary, to search for and seize property of a company in the possession of a person and to deliver it up. The requirements for the enlivening of the power of the Court to issue such a warrant are: first, that the company is being wound up or a provisional liquidator is acting; secondly, that an application is made by the liquidator or provisional liquidator; and thirdly, relevantly, that the Court is satisfied that a person has concealed or removed property of the company with the result that the taking of the property into the custody or control of the liquidator or provisional liquidator will be prevented or delayed.
The principles with regard to the application of that provision and then the exercise of the discretion once the Court is satisfied as to the requirements having been met have been consistently stated in various cases over time: Carello (liquidator), in the matter of Drilling Australia Pty Ltd (in liq) [2019] FCA 1563; 139 ACSR 187 at [6]-[9] per Banks-Smith J, and as adopted in Tang (liquidator) v Wright, in the matter of Wright’s Transport Pty Ltd (in liq) [2020] FCA 709 at [15]. The Court’s power to issue a warrant under the section is discretionary, but the discretion is only enlivened once the Court is satisfied that the elements that I have identified have been established. It is quite obvious that the first two requirements are satisfied. Insofar as the third is concerned, I am comfortably satisfied on the evidence presently available that the vehicles are owned by the company. Mr Copeland has adduced various forms of evidence in support of that. I am also comfortably satisfied that the defendant is concealing or has removed the vehicles, which I infer from his failure to cooperate in the manner already described.
I can add to that that Mr Copeland and his solicitors have received calls and emails from several different firms of solicitors from time to time and an accountant, all purporting to act for the defendant and all of whom have sought time to “obtain instructions”, but nothing has ultimately come of any of that. Those communications represent a persistent pattern of non-cooperation and evasion, from which I infer that the defendant is engaging in a concerted campaign to delay Mr Copeland’s investigations and repossession of the vehicles. Clearly, it is in the interests of the liquidation and of the creditors that the vehicles are taken into the custody of the liquidator as soon as reasonably possible. The issue of the warrant is more than justified.
Mr Copeland has also sought suppression orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) on the grounds that such orders are necessary to prevent prejudice to the proper administration of justice. The orders sought would prohibit the publication or other disclosure of the various documents filed in the matter, including the orders that I am about to make.
I have two difficulties in relation to that relief. One is that it would be difficult to execute the warrant without breaching such a suppression order. The other is that I am not satisfied that it is necessary to prevent prejudice to the proper administration of justice to make such orders. Really, what Mr Copeland is concerned about is if the defendant gets access to the court file and, in that way, obtains notice of the orders prior to the execution of the warrant. If he gets such notice, it may be that he takes more urgent steps to remove the vehicles from the reach of the liquidation. That concern, it seems to me, would be adequately met by a simple order that the documents on the court file be marked confidential within the meaning of that marking referred to in rr 2.32(1)(b) and (3)(a) of the Rules. I will then provide that that order be vacated on the filing of an affidavit reporting on the execution of the warrant but also that it be made subject to further order of the Court in case the Court may be persuaded, for some reason, to lift that confidentiality characterisation at some earlier time.
I will also direct that these reasons not be made public until the warrant has been executed, and that the plaintiffs’ solicitors advise my Chambers when that has occurred.
I will make orders accordingly.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart. Associate:
Dated: 26 September 2024
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