Findlay v Jones - [2015] NSWSC 277

Supreme Court

New South Wales

Medium Neutral Citation: Findlay v Jones [2015] NSWSC 277
Hearing dates: 9 March 2015
Date of orders: 09 March 2015
Decision date: 09 March 2015
Jurisdiction: Equity Division - Corporations List
Before: Brereton J
Decision:
Notice of motion dismissed.

Catchwords: PRACTICE AND PROCEDURE – expedition of proceedings – preservation of position of unsecured creditors – where potential prejudice not significant – held, expedition not warranted.
Legislation Cited: (Cth) Corporations Act 2001, s 588FM
Cases Cited: In the matter of Appleyard Capital Pty Limited [2014] NSWSC 1932
Category: Procedural and other rulings
Parties: Chesspast Pty Limited (in liquidation) ACN 069 921 731 (applicant/third defendant)
David Findlay (first respondent/plaintiff)
Wayne Curtis Jones (second respondent/first defendant))
Veena Kaha (third respondend/second defendant)
Representation:
Counsel:
I Pike SC with V Whittaker (applicant/third defendant)
P W Flynn (first respondent/plaintiff)
D Robertson with E Whitley (second respondent/first defendant)
Solicitors:
Bridges Lawyers (applicant/third defendant)
Maddocks Lawyers (first respondent/plaintiff)
Eakin McCaffrey Cox Laywers (second respondent/first defendant)

File Number(s): 2014/249547

Judgment (ex tempore)

HIS HONOUR: In these proceedings, the plaintiff claims against the first and second defendants judgment for a sum of just under $7 million said to be the amount of loans made by the plaintiff to the defendants, and as against the third defendant company a declaration that the plaintiff is the beneficial owner of certain shares in Anvil New Zealand Limited held by the third defendant and orders to give effect to that beneficial interest. In addition, pursuant to its amended summons, the plaintiff claims orders avoiding a voluntary liquidation of the third defendant pursuant to a resolution passed on 4 September 2014, a consequential order that the third defendant be wound up in insolvency or on the just and equitable ground, and in the event such order is made, but not otherwise, an order pursuant to (Cth) Corporations Act 2001, s 588FM, extending the time for registration of its security interest in the form of the share mortgage.
By notice of motion filed on 4 March 2015, the company seeks orders for the determination, as a separate question, of the claims for relief voiding the voluntary liquidation and that the company be wound up; alternatively for determination as separate questions of those issues together with the claim for relief under s 588FM; and alternatively expedition of the entire proceedings.
When the motion came on for hearing, counsel for the applicant announced that, as a result of discussions with counsel for the plaintiff, it had emerged that it would not likely be possible to separate the preliminary questions for determination in the way contemplated by the motion, because issues of credit germane to the entire proceedings would likely arise. Accordingly, the application for determination of separate questions was not, at least significantly, pressed, and the application proceeded as one for expedition of the proceedings as a whole.
The requirement for expedition is said to be that if the voluntary liquidation is declared void and if a winding up order is made on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Findlay v Jones

Details

AGLC: Findlay v Jones [2015] NSWSC 277
Case: [2015] NSWSC 277
Decision Date: 09 March 2015

CaseChat Overview and Summary

The case of Findlay v Jones involved the applicant, Findlay, seeking an order to expedite the proceedings against the respondent, Jones. The dispute centred on the preservation of the position of unsecured creditors, with Findlay arguing that expediting the proceedings would not significantly prejudice Jones. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issues revolved around whether the potential prejudice to the respondent, Jones, would be significant if the proceedings were expedited. The court was required to balance the interests of the applicant, Findlay, against those of the unsecured creditors and the respondent. The court also needed to determine if there were exceptional circumstances that warranted expediting the proceedings, despite the potential for prejudice to unsecured creditors.

The court examined the evidence presented by both parties and considered the implications of expediting the proceedings on the unsecured creditors. It was found that the potential prejudice to Jones, while not insubstantial, was not significant enough to warrant the expediting of the proceedings. The court noted that the unsecured creditors' positions were adequately protected by the existing stay of proceedings, and expediting the matter would not substantially alter their rights or position. Consequently, the court determined that the application for expedition should be dismissed, as it was not in the interests of justice to expedite the proceedings.

In summary, the court held that expediting the proceedings was not warranted due to the lack of significant prejudice to Jones. The application for expedition was dismissed, preserving the status quo for the unsecured creditors and maintaining the existing procedural order.

Orders