Corindi Beach Developments Pty Ltd (In liq) v Conspec Trading Pty Ltd

[2011] NSWSC 747

Supreme Court

New South Wales

Medium Neutral Citation:	Corindi Beach Developments Pty Ltd (In liq) v Conspec Trading Pty Ltd & Ors [2011] NSWSC 747
Hearing dates:	12 and 15 July 2011
Decision date:	15 July 2011
Jurisdiction:	Equity Division
Before:	Black J
Decision:	Order that proceedings against two defendants be dismissed - costs to be paid under s 556(1) of the Corporations Act from monies held by Liquidator.
Catchwords:	Dismissal of proceedings - costs.
Legislation Cited:	- Corporations Act 2001 (Cth) - s 556(1), s 1317K
Category:	Principal judgment
Parties:	- Corindi Beach Developments Pty Ltd (In liq) (Plaintiff) - Conspec Trading Pty Ltd (First Defendant) - Conspec Trading Pty Ltd and Adrian & Marita Joseph Pty Ltd a.t.f. Cohiba Unit Trust (Second Defendant) - Peter Elder-Robinson (Third Defendant) - Ricanne Pty Ltd (Fourth Defendant) - Ferdinando Careri (Fifth Defendant) - Adrian & Marita Joseph Pty Ltd (Sixth Defendant) - Robert Lance Agrey (Seventh Defendant) - Adrian Joseph (Eighth Defendant) Frederick Drieberg (Ninth Defendant) - Peter & Janelle Elder-Robinson a.t.f. Elder-Robinson Family Trust (Tenth Defendant)
Representation:	Counsel: J.T. Johnson (Plaintiff) Solicitors: Sally Nash & Co (Plaintiff)
File Number(s):	10/050285

Judgment - ex tempore

1. In these proceedings, the Liquidator has achieved settlement with several parties to the proceedings. There remain proceedings against two parties, the first defendant, Conspec Trading Pty Limited, and the seventh defendant, Robert Lance Agrey. Mr J.T. Johnson, who appears for the Liquidator, has informed me that Conspec Trading Pty Limited is a company controlled by Mr Agrey, who was a director of the plaintiff until 4 June 2004, but is no longer present in the jurisdiction.

1. Mr Johnson has pointed out that the claim against Mr Agrey in the proceedings is for a maximum of $280,000 and that there would be issues in respect of any claim against him as to the operation of s 1317K of the Corporations Act 2001 (Cth) which may create a limitations issue in respect of any statutory claim. There would also be issues arising from the circumstances in which the payment on which the Liquidator relies to support its claim against Mr Agrey was made, since that payment was initially made to another party, who has settled with the Liquidator, and subsequently transferred to Mr Agrey in Canada.

1. Mr Johnson notes that any judgment against the first and seventh defendants is likely to be difficult to enforce. Mr Johnson also points out that the Liquidator is, rightly, mindful of finalising the liquidation and, with the settlement of these proceedings as against other defendants, and subject to the claims against the first and seventh defendant, the only impediment to that is the resolution of certain issues as to tax and payment of workers' compensation. In the circumstances, the Liquidator seeks an order that the proceedings against the first and seventh defendants be dismissed and that the Liquidator's costs of the claims against those defendants be paid under s 556(1) of the Corporations Act from the moneys held by the Liquidator.

1. The Liquidator's position, as outlined by Mr Johnson, appears to be one which could properly and reasonably be reached having regard to the matters to which Mr Johnson has referred. There is no reason to believe that the commencement of these proceedings as against the first defendant and seventh defendant was an unreasonable step for the Liquidator to have taken, notwithstanding that, given the settlements now achieved against other parties, he has now formed the view that it is in the interests of the liquidation and the creditors not to pursue those proceedings.

1. Subject to one matter that I note below, I order that the Liquidator's costs of the claims against the first defendant and the seventh defendant be paid under section 556(1) of the Corporations Act from the moneys held by the Liquidator of the plaintiff.

1. I note that it has not been possible for the Liquidator to give notice of this application for the costs to be paid in this manner to interested parties. I will order that my order as to payment of the Liquidator's costs not take effect for twenty-eight days, and that any interested party have liberty to approach the Court within twenty-eight days if it seeks to set aside or vary that order.

1. I direct that the Liquidator give notice of the order which I have made, and of that liberty to approach, in any notification that it may give to interested parties of the outcome of these proceedings.

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Decision last updated: 19 July 2011