Hutchins v Wily

[1999] NSWSC 780

CITATION:	Hutchins v Wily [1999] NSWSC 780
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	2804/99
HEARING DATE(S):	26 July 1999
JUDGMENT DATE:	26 July 1999
PARTIES :	Janice Hutchins (P1) Andrew Hugh Jenner Wily (D1) Lex Nominees Pty Limited (D2) Development Property Australia Pty Limited (D3) John Brickwood (D4) Leunam Pty Limited (In Liquidation) (D5)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr. J. Chard (P) Mr. J. Chippendall (D)
SOLICITORS:	Koffels (P) M. D. Nikolaiids & Co (D)
CATCHWORDS:
DECISION:

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Monday, 26 July 1999

2084/99 JANICE HUTCHINS & ORS -v- ANDREW WILY & ORS

JUDGMENT

1 MASTER: There is presently before me a notice of motion filed on 12 July 1999 by Andrew Hugh Jenner Wily described therein as the first defendant (although I shall refer to him in this judgment as the defendant). By that notice of motion that defendant seeks, substantively, an order that the summons filed by the plaintiff on 18 June 1999 be struck out and an order that the amended summons filed on 7 July 1999 be struck out. 2 The proceedings were instituted by summons filed on 18 June 1999. That summons named three plaintiffs, being Janice Hutchins as the first plaintiff, Courtway Enterprises Pty Ltd as second plaintiff and Leunan Pty Ltd as the third plaintiff. Three defendants were named to that summons, being Andrew Wily as the first defendant, Lex Nominees Pty Ltd as the second defendant and Development Property Australia Pty Ltd as third defendant. Subsequently, by leave granted in that regard by Bergin J, an amended summons was filed on 7 July 1999. It does not emerge with clarity whether the leave which her Honour granted extended to a leave to remove plaintiffs and to add defendants or whether that leave was limited only to the relief sought by the plaintiffs in the proceedings as originally constituted. 3 However the amended summons discloses Janice Hutchins (described therein as the first plaintiff) as being the only plaintiff. Five defendants are named in the amended summons, being Andrew Hugh Wily as first defendant (and I assume that he is identical to Andrew Wily the first defendant named in the summons), Lex Nominees Pty Ltd as second defendant, Development Property Australia Pty Ltd as third defendant, John Brickwood as fourth defendant and Leunan Pty Ltd (in liquidation) as fifth defendant. The second and third defendants named in the amended summons are identical to the second and third defendants named in the summons. 4 By the amended summons the plaintiff claims the following relief, as set out in prayer 2, against the first defendant, “Pursuant to section 503 of the Corporations Law an order that the first defendant be removed as liquidator of the fifth defendant”. The plaintiff also seeks as relief consequential to an order made in the terms of prayer 2, an order by prayer three that another liquidator be appointed liquidator of the fifth defendant. 5 Section 503 of the Corporations Law is as follows:

The Court may, on cause shown, remove a liquidator and appoint another liquidator.

6 Both the plaintiff and the defendant through their respective legal representatives were in agreement that an application invoking the power of the Court under section 503 of the Corporations Law can be brought only by a creditor or a contributory of a company in liquidation. In the instant case the liquidation of the fifth defendant was a voluntary liquidation. It was submitted on behalf of the defendant that the plaintiff did not have the standing to bring the present application. The plaintiff asserts that she is a creditor of the fifth defendant. The first defendant submits that there is no evidence to substantiate that status. The plaintiff has never lodged with the first defendant a proof of debt. The plaintiff attended the first meeting of creditors of the fifth defendant, but only in her capacity as a representative of another creditor and not asserting that she attended in her own capacity as a creditor herself. 7    The plaintiff did not attend and was not represented at the second meeting. At the adjournment of the second meeting of creditors the plaintiff appears to have been in attendance, but is not described as representing either herself or any other creditor. 8    There was, in the face of objection by the defendant, admitted into evidence on behalf of the plaintiff a copy of a bank statement of the account conducted by the plaintiff with the Commonwealth Bank of Australia at Guildford, which discloses that on 25 January 1999 there was withdrawn from that account an amount of $5030. 9    There is no evidence before the Court which discloses what, if anything, was done with the amount thus withdrawn, or in any way to connect that withdrawal with the fifth defendant. There is no evidence before the Court which in any way supports the submission that the plaintiff is a creditor of the fifth defendant. Since it is conceded by the plaintiff through her solicitor that, in order to have the standing to make the claim for removal of the first defendant as liquidator of the fifth defendant, the plaintiff must be a creditor or a contributory of the fifth defendant, and since it is not suggested on her behalf that she is a contributory but only that she is a creditor of the fifth defendant, and since there is no evidence whatsoever to support that assertion, it follows that the first defendant is entitled to have the proceedings against him dismissed, and I propose so to order.

I make the following orders:
(1) I order that the proceedings brought by the plaintiff against the first defendant be dismissed.
(2) I order that the plaintiff pay the costs of the first defendant of the notice of motion filed by the first defendant on 12 July 1999 and of the proceedings.

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