Crosbie, in the matter of Australian Motor Finance Limited (Receivers and Managers Appointed) (No 2)
[2009] FCA 1100
•29 SEPTEMBER 2009
FEDERAL COURT OF AUSTRALIA
Crosbie, in the matter of Australian Motor Finance Limited (Receivers and Managers Appointed) (No 2) [2009] FCA 1100
CORPORATIONS LAW – breach of trust – breach of duty in relation to a corporation – application under s 598 of the Corporations Act 2001 (Cth)
Corporations Act 2001 (Cth) s 598
IN THE MATTER OF AN APPLICATION BY CRAIG DAVID CROSBIE AND DANIEL MATHEW BRYANT AS RECEIVERS AND MANAGERS OF AUSTRALIAN MOTOR FINANCE LIMITED (RECEIVERS AND MANAGERS APPOINTED) ACN 088 694 188 AND AUSTRALIAN MOTOR FINANCE CORPORATE PTY LIMITED (RECEIVERS AND MANAGERS APPOINTED) ACN 102 903 748
VID 247 of 2009
TRACEY J
29 SEPTEMBER 2009
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 247 of 2009
GENERAL DIVISION
IN THE MATTER OF: AUSTRALIAN MOTOR FINANCE LIMITED (RECEIVERS AND MANAGERS APPOINTED), ACN 088 694 188
- AND -
AUSTRALIAN MOTOR FINANCE CORPORATE PTY LIMITED (RECEIVERS AND MANAGERS APPOINTED), ACN 102 903 748
- AND -
THE CORPORATIONS ACT 2001
CRAIG DAVID CROSBIE AND DANIEL MATHEW BRYANT As Receivers and Managers of Australian Motor Finance Limited (Receivers and Managers Appointed) ACN 088 694 188 and Australian Motor Finance Corporate Pty Limited (Receivers and Managers Appointed) ACN 102 903 748
JUDGE:
TRACEY J
DATE OF ORDER:
29 SEPTEMBER 2009
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.Mr Denis Dalmo Angeleri:
(a)pay the Applicants the sum of $171,986.09 plus interest accrued on that sum; and
(b)pay the costs of and incidental to this application.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 247 of 2009
GENERAL DIVISION
IN THE MATTER OF: AUSTRALIAN MOTOR FINANCE LIMITED (RECEIVERS AND MANAGERS APPOINTED), ACN 088 694 188
- AND -
AUSTRALIAN MOTOR FINANCE CORPORATE PTY LIMITED (RECEIVERS AND MANAGERS APPOINTED), ACN 102 903 748
- AND -
THE CORPORATIONS ACT 2001
IN THE MATTER OF AN APPLICATION BY: CRAIG DAVID CROSBIE AND DANIEL MATHEW BRYANT As Receivers and Managers of Australian Motor Finance Limited (Receivers and Managers Appointed) ACN 088 694 188 and Australian Motor Finance Corporate Pty Limited (Receivers and Managers Appointed) ACN 102 903 748
JUDGE:
TRACEY J
DATE:
29 SEPTEMBER 2009
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The Applicants moved the Court by interlocutory process for orders that Mr Denis Angeleri deliver up and transfer to them two motor vehicles and pay to them $37,381.88 plus interest. That application was amended in the course of the hearing this morning such that the application for the delivery up and transfer of the two motor vehicles was withdrawn and there was substituted an application that an order be made requiring Mr Angeleri to pay to the Applicants the sums which were applied to paying out the loan accounts on the two vehicles. The Applicants make the application in their capacities as Receivers and Managers of Australian Motor Finance Corporate Pty Limited (“AMFC”) and Australian Motor Finance Limited (“AMFL”). The application is made under s 598 of the Corporations Act 2001 (Cth) (“the Act”).
The Applicants move on the affidavit of Mr Craig Crosbie, one of the Receivers and Managers.
Mr Angeleri appeared by his solicitor this morning and did not oppose the making of the orders sought in their amended form.
The Applicants have sought and obtained the approval of the Australian Securities and Investment Commission (“ASIC”) to be eligible applicants for the purpose of Division 2, Part 5.9 of the Act.
Mr Angeleri was, at all relevant times, and is, a Director of both AMFC and AMFL. He was at all relevant times the Managing Director of the AMF Group which comprised AMFC and AMFL.
The AMF Group provided funds to purchasers to finance their acquisition of motor vehicles. The funding for this business was provided by ABL Nominees Pty Ltd. Persons to whom loans were advanced paid interest on those loans. The interest was paid into an account entitled “The AMFC Collections Account”. That account was conducted with the Westpac Banking Corporation. On the morning of 22 January 2009 there was in excess of $2.75 million in the account. By the evening of that day $2.75 million had been transferred out of the account. The transfer was effected by Mr Michael O’Brien who was the Chief Financial Officer of the AMF Group. The money was distributed through a series of accounts. There were multiple transactions. It is sufficient for present purposes to note that some of the funds were ultimately used by Mr Angeleri to pay out loans in his name on two motor vehicles. Those vehicles were an Audi wagon bearing registration number WJA 186 and a Mercedes Benz sedan bearing registration number SZU 850. The amounts involved were, respectively, $95,732.38 and $38,871.83. In addition, $15,041.88 was paid to Diners Club Pty Ltd as a credit card payment on an account held by Mr Angeleri; $9,340.00 was paid to the Commonwealth Bank of Australia as a payment on a credit card account held in Mr Angeleri’s name; and $13,000.00 was paid to an account maintained with the Westpac Bank in the joint names of Mr Angeleri and his wife. Although the bulk of the $2.75 million has now been recovered by the Applicants the sums just referred to remain outstanding. The Applicants, therefore, seek to recover the sums expended in relation to the two motor vehicles and the monies paid into the three accounts.
In the course of a public examination of Mr Angeleri on 28 and 29 May 2009, conducted pursuant to Part 5.9 of the Act, he admitted that:
·It was his idea to transfer the $2.75 million out of the AMFC Collections Account;
·The $2.75 million was impressed with a trust in favour of ABL Nominees Pty Ltd;
·The $2.75 million was subject to a trust and ought not to have been used for purposes inconsistent with the trust arrangements;
·He had no right to deal with, or retain any part or benefit from, the $2.75 million;
·He effected the transfer of that part of the $2.75 million which was applied to the loans and other accounts earlier referred to; and
·He knew, at all material times, that these payments came from the $2.75 million to which he had no entitlement and, nonetheless, he applied these payments for his own personal benefit.
Section 598 of the Act relevantly provides:
“(2) Subject to subsection (3), where, on application by an eligible applicant, the Court is satisfied that:
(a)a person is guilty of fraud, negligence, default, breach of trust or breach of duty in relation to a corporation; and
(b)the corporation has suffered … loss or damage as a result of the fraud, negligence, default, breach of trust or breach of duty;
the Court may make such order or orders as it thinks appropriate against or in relation to the person (including either or both of the orders specified in subsection (4)) and may so make an order against or in relation to a person even though the person may have committed an offence in respect of the matter to which the order relates.
(3) The Court must not make an order against a person under subsection (2) unless the Court has given the person the opportunity:
(a)to give evidence; and
(b)to call witnesses to give evidence; and
(c)to bring other evidence in relation to the matters to which the application relates; and
(d)to employ, at the person’s own expense, a solicitor, or solicitor and counsel, to put to the person, or to any other witness, such questions as the Court considers just for the purpose of enabling the person to explain or qualify any answers or evidence given by the person.
(4) The orders that may be made under subsection (2) against a person include:
(a) an order directing the person to pay money or transfer property to the corporation; and
(b) …”
The Applicants are “eligible” applicants for the purposes of s 598.
Mr Angeleri is, by his own admissions, a person who has been guilty of a breach of trust and breach of duty as an officer of AMFC. He is also a person who is probably guilty of fraud in respect of the same transactions. It is not, however, necessary to make such a serious finding for present purposes.
I am satisfied that AMFC suffered loss as a result of the transfer of the funds which are the subject of the present application.
Mr Angeleri was afforded the opportunities which are mandated by s 598(3). He did not avail himself of any of those opportunities save that he instructed his solicitor to appear this morning and to make submissions on his behalf.
In the circumstances it is appropriate that Mr Angeleri should be required to repay the amounts paid, plus interest, to his credit with Diners Club, the Commonwealth Bank and the sum paid into the joint account in the Westpac Bank. Those orders will be made.
Orders will also be made for the payment of the two amounts, plus interest, that were directed to paying out the loan accounts in respect of the two motor vehicles.
Mr Angeleri does not resist an order that he should pay the costs of the Applicants of and incidental to this application and an order to that effect will also be made.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate:
Dated: 29 September 2009
Counsel for the Applicant: Mr M Hoffmann QC Solicitor for the Applicant: Finlaysons
Date of Hearing: 29 September 2009 Date of Judgment: 29 September 2009
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