Foyster v Foyster Holdings Pty Ltd
[2002] NSWSC 503
•4 June 2002
NEW SOUTH WALES SUPREME COURT
CITATION: Foyster v Foyster Holdings Pty Ltd [2002] NSWSC 503
CURRENT JURISDICTION: Equity
FILE NUMBER(S): 5585/01
2806/02
HEARING DATE{S): 4 June 2002
JUDGMENT DATE: 04/06/2002
PARTIES:
5585/01
Jacqueline Whyatt Foyster (P)
Foyster Holdings Pty Limited (Provisional Liquidator Appointed) (D)
2806/02
David Lloyd Foyster (P)
Foyster Holdings Pty Limited (Provisional Liquidator Appointed) (D1)
Ian Lawrence Struthers (D2)
Jacqueline Whyatt Foyster (D3)
Tasmanium Titanium Pty Limited (D4)
Peter William Hopkins (D5)
Hopkins Professional Services Pty Limited (D6)
Maxwell William Prentice (D7)
Repbrook Pty Limited (D8)
JUDGMENT OF: Hamilton J
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
5585/01
M R Aldridge SC (P)
J G Harrowell, Solicitor (D)
2806/02
R Sofroniou (P)
J G Harrowell, Solicitor (D1 & 2)
M R Aldridge SC (D3)
J Simpkins SC & K Odgers (Coggan & Russell, Intervenors/Directors D4)
L Aitken (Robinson, Intervenor/Director D4)
R J Weber SC (D6)
J T Johnson (D7)
C Blackwell, Solicitor (D8)
J Simpkins SC & K Odgers
SOLICITORS:
5585/01
English Kearns (P)
Hunt & Hunt (D)
2806/02
kings lawyers (P)
Hunt & Hunt (D1 & 2)
English Kearns (D3)
No appearance (D4)
Phillips Fox (D5 & 6)
Sally Nash & Co (D7)
Cowley Hearne (D8)
CATCHWORDS:
CORPORATIONS [289] - Winding up - Liquidators - Provisional liquidators - Matters relating to termination of employment - Procedure on application for removal - Application should be by interlocutory process in proceedings in which provisional liquidator appointed.
ACTS CITED:
DECISION:
Prayer for removal of provisional liquidator struck out of originating process in other proceedings with leave to make application by interloctory process in proceedings in which he was appointed.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
TUESDAY, 4 JUNE 2002
5585/01 JACQUELINE FOYSTER v FOYSTER HOLDINGS PTY LTD
2806/02DAVID LLOYD FOYSTER v FOYSTER HOLDINGS PTY LTD (PROVISIONAL LIQUIDATOR APPOINTED) & ORS
JUDGMENT
HIS HONOUR: There are two sets of proceedings before the Court today. The first set is 2806/02, by which David Lloyd Foyster seeks against Foyster Holdings Pty Ltd (provisional liquidator appointed) (“Foyster Holdings”) and others a variety of relief relating to the conduct of the affairs of Tasmanian Titanium Pty Ltd (“Tasmanian Titanium”) which is the fourth defendant to those proceedings. I shall call those proceedings the Tasmanian Titanium proceedings. The other set is 5585/01, by which Jacqueline Foyster seeks against Foyster Holdings the appointment of a provisional liquidator. In those proceedings Barrett J on 3 December 2001 in fact appointed Ian Struthers provisional liquidator of that company. I shall call those proceedings the Foyster Holdings proceedings.
Today there have been varying claims for three types of relief in one or both sets of proceedings. They may be characterised as follows. By the first type, the Court has been pressed, upon an application of Mr Struthers, supported by the plaintiff in the Tasmanian Titanium proceedings, that Foyster Holdings be wound up and Mr Struthers be immediately appointed liquidator rather than provisional liquidator of that company. There is also current an application that Mr Struthers be removed as provisional liquidator of the company. The second type of application is for interlocutory injunctive relief in the Tasmanian Titanium proceedings. There was in place a restraint which expires today restraining that company from entering into an agreement relating to mineral sand deposits on King Island, which are the principal asset of Tasmanian Titanium. The third type of application relates to the appointment of a representative in some form of Tasmanian Titanium itself in the Tasmanian Titanium proceedings, as that company has not entered an appearance in the proceedings by reason of the conflicts between various interests in the company.
So far as applications of the first type are concerned, I do not accede to the application that Mr Struthers be appointed forthwith as liquidator of the company. That application has been brought forward late and the material in support of it, on the evidence before me, reached the plaintiff in the Tasmanian Titanium proceedings only today, so there has been no chance to assess and answer it. Furthermore, that plaintiff still seeks to urge her case that, whatever happens, Mr Struthers is not an appropriate person to hold the office of provisional liquidator or liquidator, if one be appointed. It has been said against her – and it has a deal of force – that the evidence in support of this objection has not been mustered, despite some opportunity to do so. However, looking at all the circumstances, in my view these matters ought not proceed today and the best course is for them to be stood over to the Corporations List next Tuesday, about a week hence. All parties should be prepared to pursue their applications concerning Mr Struthers at that time.
I have made some remark on the form of the applications. The application to remove Mr Struthers as provisional liquidator was not made in the Foyster Holdings proceedings, in which he was appointed. It was made instead by prayer 3 in the originating process in the Tasmanian Titanium proceedings, which, as I have said, principally involve the internal affairs of that company. The various applications before the Court today are overlapping and convoluted. In my view a deal of the convolution has arisen from the inappropriateness of the removal of the provisional liquidator being sought in the originating process of the Tasmanian Titanium proceedings, rather than being sought in the usual way by motion in the Foyster Holdings proceedings (cf Corporations Law Rules 7.11). Because that prayer was contained in the originating process the provisional liquidator, when applying for a winding up order and to be appointed liquidator, made his application by way of interlocutory process also in the Tasmanian Titanium proceedings, perhaps understandably, but again, in my view, quite inappropriately.
What I propose to do to attempt to reduce these unruly matters to some order is to achieve some procedural regularity by correcting that situation. I propose to do that by dismissing the provisional liquidator’s interlocutory process as brought in the wrong proceedings. I also intend to strike out prayer 3 and, consequentially, prayers 4, 5 and 6 from the originating process in the Tasmanian Titanium proceedings, but to grant the plaintiff in those proceedings leave to proceed by interlocutory process in the Foyster Holdings proceedings returnable next Tuesday, thus producing some greater procedural regularity. I was also somewhat inclined to strike out prayers 1 and 2 in that originating process as really going to the conduct of the provisional liquidation. Ms Sofroniou, of counsel for the plaintiff, has asked me not to do that, as she has some argument to put against it, whereas there has been no opposition in reality to the course that I am proposing to take of dismissing the provisional liquidator’s interlocutory process and striking out prayers 3 - 6 of the originating process in the Tasmanian Titanium case. Lest there be an argument that the first two prayers have some realistic part to play in the Tasmanian Titanium proceedings, I shall leave them there for the moment, whilst expressing some doubt as to their utility or appropriateness in those proceedings. It should be made plain that I have made no ruling one way or the other on the appropriateness of those prayers remaining in the proceedings.
Those rulings deal with the situation as to what ought occur today about the provisional liquidation and potential liquidation of Foyster Holdings.
Turning to the second group of applications, Ms Sofroniou on behalf of the plaintiff in the Tasmanian Titanium proceedings presses for a renewal of the existing restraint. The relevant defendants in those proceedings have indicated that they are prepared to consent to an injunction in the relevant terms, providing that there are added the words “otherwise than pursuant to a resolution of the board of directors of the fourth defendant”. The incorporation of those words is acceptable to Ms Sofroniou and there therefore no real opposition to the granting of a restraint in those terms. That restraint I propose to grant, in the absence of opposition, until further order. That disposes for the moment of the question of the necessary interlocutory restraint in the Tasmanian Titanium proceedings.
So far as the third type of application is concerned relating to the representation of Tasmanian Titanium in the Tasmanian Titanium proceedings, the parties are all agreed that the resolution of the applications of the first two types in the manner which I have announced has removed the necessity, for the moment at least, of the appointment of such a representative. In the presence of all the other relevant participants in that company as parties in those proceedings such representation is not deemed necessary at the moment, although an application concerning that representation may, of course, be renewed if at any stage such representation appears necessary.
In each set of proceedings there will be orders in accordance with short minutes initialled by me and placed with the papers.
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LAST UPDATED: 15/07/2002
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