Haltuli Pty Ltd v Park

SUPREME COURT OF QUEENSLAND

CITATION:

Haltuli Pty Ltd v Park & Ors [2005] QSC 262

PARTIES:

HALTULI PTY LTD (ACN 010 552 664)
(RECEIVERS APPOINTED)
(applicant)
v
JOHN PARK AND IAN McINTOSH (AS TURSTEES OF THE ESTATE OF THE SECOND AND THIRD RESPONDENTS)
(first respondent)
BRIAN JOSEPH LEAMON
(second respondent)
JENNIFER JOY LEAMON

(third respondent)

FILE NO/S:

BS 4829 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

16 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

22 July 2005

JUDGE:

Moynihan J

ORDER:

1.   That the sum of $126,615.00 together with accretions currently held by the First Respondent pursuant to an Order made on 10 June 2004 in the Federal Magistrates Court at Brisbane is the property of the Applicant.

2.   That the Second and Third Respondents pay to the Applicant interest on that sum for the period of 15 April 2004 to 11 June 2004 calculated at 5 percent p.a. for the period of 58 days in the sum of $1,005.98.

3.   That the Respondents pay the Applicants costs to be assessed on a standard basis.

CATCHWORDS:

Trusts Act 1973;

Wily v St George Partnership Banking Ltd (1999) 30 ACSR 204.

COUNSEL:

Mr D Cooper SC with Mr R Lawson for the applicant;

Mr G Porter (Sol) for the second and third respondents.

SOLICITORS:

Porter Davies Lawyers for the applicant;

G B Porter Lawyer for the second and third respondent.

1. The applicant company seeks a declaration that $126,615 (and any accretions) currently held by the first respondent pursuant to an order of 10 June 2004 made by the Federal Magistrates Court is the applicant’s property or alternatively that the money vest in the applicant pursuant to s 82 of the Trusts Act 1973.

1. The applicant company entered into a multi site franchise agreement with Mobil Oil Australia Pty Ltd (Mobil) to conduct a number of Mobil service stations in the Brisbane metropolitan area in 1997. The applicant also entered into a mortgage agreement with Mobil Oil Australia Limited which included a fixed and floating charge over its property.

1. The second and third respondents are directors and shareholders of the applicant and guarantors of the franchise agreement.  They depose that during the time the applicant traded they were engaged in full time management of its business but did not draw all the wages or directors’ fees to which they claim they were entitled.

1. The franchise agreement required that moneys received by the applicant during the course of operation of the service stations be transferred electronically to Mobil’s bank account by automatic direct debit.

1. On 13 April 2004 Mobil, acting pursuant to the franchise agreement, attempted a direct debit to the applicant’s account in the sum of $249,320.56.  On 15 April 2004 Mobil gave a notice of dishonour.  On 19 April 2004 a further payment was dishonoured.

1. On 15 April 2004 a total of $69,394.47 was transferred from a bank account of the applicant to pay debts owed on credit…