Currie v Sittczenko

[2007] FCA 584

FEDERAL COURT OF AUSTRALIA

Currie v Sittczenko [2007] FCA 584

IAN ALEXANDER CURRIE ACCOUNTANT AS RECEIVER OF CASHPAC NO. 1 $100,000 CLUB (RECEIVER APPOINTED) & CASHPAC NO 2 $200,000 CLUB (RECEIVER APPOINTED) v ARKADY SITTCZENKO (“CARDY”)

QUD 479 OF 2006

DOWSETT J
2 MARCH 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 479 OF 2006

BETWEEN:	IAN ALEXANDER CURRIE ACCOUNTANT AS RECEIVER OF CASHPAC NO. 1 $100,000 CLUB (RECEIVER APPOINTED) & CASHPAC NO 2 $200,000 CLUB (RECEIVER APPOINTED) Applicant
AND:	ARKADY SITTCZENKO ("CARDY") Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	2 MARCH 2007
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The respondent, Arkady Sittczenko, pay to the applicant, Ian Alexander Currie, the sum of $26 408.74 forthwith. 

2.The respondent, Arkady Sittczenko, pay to the applicant, Ian Alexander Currie, the costs of and incidental to this application, including reserved costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 479 OF 2006

BETWEEN:	IAN ALEXANDER CURRIE ACCOUNTANT AS RECEIVER OF CASHPAC NO. 1 $100,000 CLUB (RECEIVER APPOINTED) & CASHPAC NO 2 $200,000 CLUB (RECEIVER APPOINTED) Applicant
AND:	ARKADY SITTCZENKO ("CARDY") Respondent

JUDGE:	DOWSETT J
DATE:	2 MARCH 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 7 February 2002, Drummond J, exercising the jurisdiction conferred on the Court by s 601EE(2) of the Corporations Act 2001 (Cth) (the “Corporations Act”), ordered the winding up of two schemes. Apparently pursuant to the power conferred by subs 601EE(2), his Honour also ordered that Ian Alexander Currie and Peter Anthony Lucas be appointed as receivers of the property of the schemes. Orders 13 and 14 were as follows:

   ‘(13)The reasonable costs and expenses incurred by the Receiver in connection with the winding up of the “Cashpac Number 1 $100,000 Club” and the “Cashpac Number 2 $200,000 Club” are to be paid from the profits received by each Club.

   (14)In the event the Investor’s profits are insufficient to meet the costs and expenses incurred by the Receiver, the (second) Respondent is to pay any shortfall within seven days of being presented with the Receiver’s account for such expenses.’

2. The material demonstrates that no profits were derived from the realisation of the assets.  The receivers have rendered bills in the amounts of $10 078.71, $3 517.03, and $12 813.

3. As a result of a query made by the present respondent, the total of the bills was reduced by $1 143, so that the outstanding balance is $26 408.74. Pursuant to para 14 of the order, that amount was payable within seven days of the account. The various accounts were presented long ago, and no amount has been received. The receivers now seek orders to facilitate payment by the respondent pursuant to the orders made by Drummond J. They rely upon O 26 r 4, which provides that a receiver shall be allowed such remuneration, if any, as may be fixed by the Court. Order 26, r 1 refers to the appointment of a receiver under an Act. I was somewhat concerned at whether or not such a description could be applied in the present case, but, on reflection, I am satisfied that it can. As I have said, the receivers were appointed pursuant to the power conferred by s 601EE of the Corporations Act. The respondent submitted to the jurisdiction of the court in consenting to the order made by Drummond J and accepted the obligation to pay imposed by para 14. Paragraph 16 of the order made by his Honour was in the following form:

   ‘Liberty is reserved to: 

   (a)      ASIC; 
   (b)      The Receiver; 
   (c)       Any investor in the Schemes; 

   to apply for orders, directions or Orders varying these Orders and/or further supplementary orders in relation to the winding up of either of the Schemes.’

4. I treat the present application as being made pursuant to both O 26 r 4 and the grant of liberty to apply. 

5. The title of the action will be amended by deleting the word “Insolvency” where it appears after the name “Ian Alexander Currie”.

6. I order that the respondent, Arkady Sittczenko, pay forthwith to the applicant, Ian Alexander Currie, the sum of $26,408.74.  I further order that the respondent pay to the applicant the costs of and incidental to this application, including reserved costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       24 April 2007

Counsel for the Applicant:	Mr P W Hackett
Solicitor for the Applicant:	Rick Jones and Associates
Date of Hearing:	2 March 2007
Date of Judgment:	2 March 2007