Geoffrey Lawrence Borlini v Desert Ore Contracting Pty Ltd
[2012] FMCA 360
•30 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GEOFFREY LAWRENCE BORLINI v DESERT ORE CONTRACTING PTY LTD | [2012] FMCA 360 |
| INDUSTRIAL LAW – Adjournment of proceedings – company in liquidation. |
| Corporations Act 2001 (Cth), s.471B |
| Pham v Cashpita Management Pty Ltd [2009] FMCA 894 |
| The Applicant: | GEOFFREY LAWRENCE BORLINI |
| Respondent: | DESERT ORE CONTRACTING PTY LTD |
| File Number: | PEG 372 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 30 April 2012 |
| Date of Last Submission: | 30 April 2012 |
| Delivered at: | Perth |
| Delivered on: | 30 April 2012 |
REPRESENTATION
| Applicant | In person |
| Counsel for the Respondent: | Mr D McDonnell |
| Solicitors for the Respondent: | Allens Arthur Robinson |
ORDERS
The Application be stood over generally in accordance with s.471(B) of the Corporations Act 2001 (Cth).
Parties have liberty to apply by filing an Application in a Case seeking further directions at a later time.
Leave is granted to the Respondent’s present solicitor to withdraw as lawyer in this case.
Leave is granted to amend name of Respondent to read “Desert Ore Contracting Pty Ltd (Receivers Appointed) (In Liquidation)”.
Costs be reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 372/2011
| GEOFFREY LAWRENCE BORLINI |
Applicant
And
| DESERT ORE CONTRACTING PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Ex tempore reasons – edited from transcript)
The parties sought by consent to adjourn this matter today on the basis that the respondent is in liquidation. There was at that point in time no evidence before the Court about the status of the respondent other than communication to Chambers to that effect and the Court was not prepared given the terms of s.471B of the Corporations Act 2001 (Cth)[1] simply to allow the proceedings to proceed by way of and adjournment order by consent.
[1] “Corporations Act”
The effect of s.471B of the Corporations Act is that the proceedings cannot be adjourned as they are already stayed during the winding up process. In the course of proceedings today the Court has been handed a letter to the respondent’s solicitors from the liquidator confirming that the liquidator is currently without funds and it appears that there will be insufficient asset realisation to allow for any return to ordinary unsecured creditors of the respondent. The liquidator is not going to continue to fund any continued action in respect of the application presently before the Court.
In these circumstances, the proper orders, and the Court refers to Pham vCashpita Management Pty Ltd [2009] FMCA 894 are that:
a)the application be stood over generally in accordance with s.471(b) of the Corporations Act; and
b)the parties have liberty to apply by filing an application in a case seeking further directions at a later stage.
During the course of the directions hearing, Mr McDonnell, who appear on instructions from the liquidator, indicated that in the circumstances outlined in the letter from the liquidator, which the Court has adverted, he intended to file a notice of withdrawal as a lawyer and he has handed to the Court a notice of withdrawal as a lawyer dated today. In the circumstances, I do not think there is any necessity to continue with the other formalities in respect of the notice of withdrawal as a lawyer and there will be an order granting the respondent’s present solicitors to withdraw as lawyers in this case.
There should also be an order amending the name of the respondent. There will be an order amending the name of the respondent to read “Desert Ore Contracting Pty Ltd (Receivers appointed) (In liquidation)” as appears in the letter from the liquidator to which the Court has earlier adverted. That letter will be formally be marked as exhibit 1 in the proceedings.
There should also be an order that costs be reserved.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 2 May 2012
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