DebtCo Pty Ltd v Sayed & Ors

[2024] NSWDC 18

District Court

New South Wales

Medium Neutral Citation:

DebtCo Pty Ltd v Sayed & Ors [2024] NSWDC 18

Hearing dates:

12 February 2024

Date of orders:

14 February 2024

Decision date:

14 February 2024

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph [33]

Catchwords:

CIVIL PRACTICE & PROCEDURE – application for summary dismissal

CORPORATIONS – asserted action by an assignee against directors or officers of a deregistered former corporate debtor and an asserted accessory

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Corporations Act 2001 (Cth)

District Court Act 1973 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Bakewell v Anchorage Capital Master Offshore Ltd [2019] NSWCA 199

Barnes v Addy (1874) LR 9 Ch App 244

Foss v Harbottle (1843) 67 ER 189

Gerard Cassegrain & Co Pty Ltd (in liq) v Cassegrain [2013] NSWCA 455

Kinsela v Russell Kinsela Pty Ltd (1986) 4 NSWLR 722

Saloman v Saloman [1897] AC 22

The Bell Group Ltd (in liq) v Westpac Banking Corporation (No.9) [2008] WASC 239

Walker v Wimborne (1976) 137 CLR 1

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

DebtCo Pty Ltd (Plaintiff)
Mr Abdul Sayed (First Defendant)
Ms Georgina Makke (Second Defendant)
Academy of Aesthetics Pty Ltd (Third Defendant)

Representation:

Counsel:
S Fisher (Plaintiff)
A Rizk (Second and Third Defendants)

Solicitors:
Francom Legal (Plaintiff)
Memcorp Lawyers (Second and Third Defendants)

File Number(s):

2023/307506

Publication restriction:

Nil

REASONS FOR JUDGMENT

Background

1. On or about 5 May 2021, Prospa Advance Pty Ltd ('Prospa') agreed to lend money in the sum of approximately $100,000 to a company called Dullys Pty Ltd (‘Dullys’). It was a short term loan.

2. Mr Abdul Sayed (the first defendant in this proceeding) was a guarantor and indemnifer of Dullys’ obligations to Prospa. Mr Sayed was sole director and member of Dullys. Dullys operated a business called ‘Barewolf Clinics’ and did so from premises at Belfield.

3. Ms Georgina Makke was at relevant times an employee of Dullys and it is alleged that she too was an officer of Dullys. She is the second defendant in this proceeding.

4. In September 2021, an entity called Academy of Aesthetics Pty Ltd (‘Academy Aesthetics’) was registered. It is the third defendant in this proceeding. Its registered address was the same as the address as the address for Barewolf Clinics and Ms Makke was listed on the ASIC register as the sole director, secretary and member of Academy Aesthetics.

5. On 30 September 2021, it is alleged that Academy Aesthetics entered into an agreement with Dullys to acquire the latter’s assets; and, on or from the same day, it operated the business of Barewolf Clinics. DebtCo referred, specifically, to some other evidence indicating Academy Aesthetics’ acquisition of intellectual property of Dullys.

6. Dullys failed to repay the loan to Prospa. Dullys entered into liquidation in about October 2021 and became deregistered in May 2022.

7. On 5 November 2021, in advice to creditors, the liquidator to Dullys noted, amongst other things, that some of Dullys’ assets were sold prior to his appointment and foreshadowed…