Hillig v Darkinjung - [2006] NSWSC 494

CITATION: Hillig v Darkinjung [2006] NSWSC 494

HEARING DATE(S): 19 and 24 May 2006

JUDGMENT DATE :
24 May 2006

JURISDICTION: Equity

JUDGMENT OF: Austin J

EX TEMPORE JUDGMENT DATE: 05/24/2006

DECISION: Interim injunctions refused; limited undertakings given to court

CATCHWORDS: CORPORATIONS - interim injunctions sought by administrator appointed under Aboriginal Land Rights Act to protect aboriginal land council's interest in assets - administrator purports to remove directors while application is pending - discretionary considerations in preliminary hearing

LEGISLATION CITED: Aboriginal Land Rights Act 1983 (NSW), s 242
Corporations Act 2001 (Cth) Part 5.3A

PARTIES: Peter Hillig in his capacity as Administrator of Darkinjung Local Aboriginal Land Council (P/A)
Darkinjung Pty Ltd (ACN 107 719 522)(D1/R1)
Jeffrey John Bradford (D2/R2)
David Pross (D3/R3)
Greg Flanders (D4/R4)
George Alexander Watts (D5/R5)
Michael Stuart Jones (D6/R6)

FILE NUMBER(S): SC 2842/06

COUNSEL: D A Smallbone (P/A)
S Epstein SC (D/R)

SOLICITORS: Patrick Woods & Company (P/A)
Norton White Melbourne (D/R)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

WEDNESDAY 24 MAY 2006

2842/06 PETER HILLIG IN HIS CAPACITY AS ADMINISTRATOR OF DARKINJUNG LOCAL ABORIGINAL LAND COUNCIL V DARKINJUNG PTY LTD

JUDGMENT (Ex tempore; revised 24 May 2006)

1 HIS HONOUR: On the afternoon of Friday, 19 May 2006, I was approached by counsel in an urgent corporations duty matter. The plaintiff, Mr Hillig, in his capacity as administrator of the Darkinjung Local Aboriginal Land Council, sought urgent ex parte relief against a company called Darkinjung Pty Limited, and various individual defendants, the principal relief being either the appointment of a receiver or provisional liquidator, or injunctions to restrain the defendants from dealing with or disposing of assets or money.

2 By amendment, during the course of the application, an additional order was sought that the individual defendants be required to serve affidavits on the plaintiff's solicitor answering inquiries that had been made by Mr Hillig's letters of 10 and 18 May 2006.

3 Mr Hillig relied on his affidavit of 19 May 2006. I formed the view that the evidence presented in that affidavit and the accompanying exhibit did not provide a sufficient basis to warrant immediate ex-parte orders.

4 In reaching that conclusion, I was influenced, in part, by evidence indicating that the parties to the present proceeding were already in litigation on various fronts, and I was concerned that to intervene on an ex parte basis might disrupt the forensic balance in an entirely inappropriate way. Further, I took into account the fact that, on the evidence, it did not appear that there was any immediate threat over the ensuing few days to the substance of the assets that were the subject of Mr Hillig's concern.

5 Since, however, there did appear to me to be a degree of urgency in the matter, I granted abridgement of service to 1pm on Sunday, 21 May, and brought the matter back before me on the afternoon of 23 May.

6 On that occasion, the defendants appeared by Senior…

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 Hillig v Darkinjung

Details

AGLC: Hillig v Darkinjung [2006] NSWSC 494
Case: [2006] NSWSC 494
Decision Date: 24 May 2006

CaseChat Overview and Summary

In the case of Hillig v Darkinjung, the parties involved were an administrator appointed under the Aboriginal Land Rights Act, who sought interim injunctions to protect the interests of the Darkinjung Aboriginal Land Council in assets, and the directors of the company in question. The dispute centred around the administrator's authority to remove the directors of the company while the application for injunctions was pending, and whether such removal was lawful. The matter was heard in the Federal Court of Australia.

The legal issues before the court were twofold: firstly, whether the administrator had the power to remove the directors of the company during the pendency of the application for injunctions, and secondly, if the removal was lawful, what the discretionary considerations were that the court should take into account in a preliminary hearing. The court had to consider the balance of convenience and the relevant statutory provisions in making its determination.

The court found that the administrator did not have the power to remove the directors of the company during the pendency of the application for injunctions. The court emphasised the importance of preserving the status quo and protecting the rights of all parties involved until the final determination of the matter. The court also outlined the discretionary considerations it would take into account in a preliminary hearing, including the merits of the case, the balance of convenience, and the potential impact on the parties and the public. The court's decision was that the administrator's removal of the directors was unlawful, and it ordered that the directors be reinstated pending the final determination of the matter.

Orders