In the matter of Steve Carlos and Associates Pty Ltd (ACN 010 806 130) Sinclair, Stephen Wayne v George and Carlos Accountants and Advisors

[1998] FCA 1777

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 175 of 1998

IN THE MATTER OF:  STEVE CARLOS & ASSOCIATES PTY LTD (ACN 010 806 130)

BETWEEN:

STEPHEN WAYNE SINCLAIR
APPLICANT

AND:

GEORGE & CARLOS ACCOUNTANTS AND ADVISERS
FIRST RESPONDENT

JAYSHURST PTY LTD & CHELFIELD PTY LTD
SECOND RESPONDENTS

JUDGE:	DRUMMOND J
DATE OF ORDER:	18/12/98
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondents’ costs of QG 175 of 1998.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 175 of 1998

IN THE MATTER OF:  STEVE CARLOS & ASSOCIATES PTY LTD (ACN 010 806 130)

BETWEEN:

STEPHEN WAYNE SINCLAIR
APPLICANT

AND:

GEORGE AND CARLOS ACCOUNTANTS AND ADVISERS
FIRST RESPONDENT

JAYSHURST PTY LTD & CHELFIELD PTY LTD
SECOND RESPONDENTS

JUDGE:	DRUMMOND J
DATE:	18/12/98
PLACE:	BRISBANE

REASONS FOR JUDGMENT

This is an application for an order said to be brought in reliance on ss 486A, 460(1)(e) and 460(1)(f) the Corporations Law for the appointment of a receiver and manager for three entities:  firstly, George & Carlos Accountants and Advisers; secondly, Jayshurst Pty Ltd; and thirdly, Chelfield Pty Ltd.  The object of the application is to pursue assets said by Mr Sinclair to belong to another company, Steve Carlos & Associates Pty Ltd, which have been wrongly taken from that company by persons associated with the three entities the subject of the present application.

Mr Sinclair has long had an application for the winding up of Steve Carlos and Associates Pty Ltd before the Court.  It is possible that he may ultimately get around to attending to what he has to do to obtain that winding up order.  The respondent to that application has never opposed the making of the winding up order.  Mr Sinclair has now got this application to the stage where a provisional liquidator has been appointed.  His difficulties in large part stem from his failure to take advantage of the assistance offered to him by Registry staff with respect to the running of his winding up application.  Once a winding up order is made, there will be a liquidator in charge of the administration of Steve Carlos and Associates Pty Ltd, who will have the full power and be duty bound to pursue the question of deprivation of the assets in question of that company.

The bases upon which Mr Sinclair relies to seek the orders appointing a receiver and manager of the three entities in action QG 175 of 1998 are not available to him, only to a liquidator or provisional liquidator.  There is no reason in the material before me which comes anywhere near justifying the exceptional authority the Court has in equity to appoint a receiver and manager.  The application is without substance and I will therefore dismiss it.

I will order that the applicant pay the respondent's costs of proceeding QG 175 of 1998.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated:             18/12/98