Incentive Dynamics Pty Ltd (in liquidation) v Robins, Douglas Robert McNeill
[1998] FCA 909
•29/05/98
FEDERAL COURT OF AUSTRALIA
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 3043 of 1997 |
IN THE MATTER OF:
INCENTIVE DYNAMICS PTY LIMITED (IN LIQUIDATION) (ACN 003 294 700)
BETWEEN: | INCENTIVE DYNAMICS PTY LIMITED (IN LIQUIDATION) (ACN 003 294 700) ROBERT WILLIAM MORTON in his capacity as Official Liquidator of Incentive Dynamics Pty Limited | |
AND: | DOUGLAS ROBERT McNEILL ROBINS JOHN HAIGH ROBINS JONATHAN MICHAEL MEISSNER JOHN D'ERSBY HUDSON COLDWICK PTY LIMITED (ACN 053 673 395) ROBINS HAIGH McNEILL PTY LIMITED (ACN 002 876 771) PAGBY PTY LIMITED (ACN 005 203 136) CHERYL ANN CHANG | |
JUDGE(S): | NORTH J | |
DATE OF ORDER: | 29/05/98 | |
WHERE MADE: | MELBOURNE | |
THE COURT ORDERS THAT:
The respondents' application is dismissed with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 3043 of 1997 |
IN THE MATTER OF:
INCENTIVE DYNAMICS PTY LIMITED (IN LIQUIDATION) (ACN 003 294 700)
BETWEEN: | INCENTIVE DYNAMICS PTY LIMITED (IN LIQUIDATION) (ACN 003 294 700) ROBERT WILLIAM MORTON in his capacity as Official Liquidator of Incentive Dynamics Pty Limited |
AND: | DOUGLAS ROBERT MNEILL ROBINSc JOHN HAIGH ROBINS JONATHAN MICHAEL MEISSNER JOHN D'ERSBY HUDSON COLDWICK PTY LIMITED (ACN 053 673 395) ROBINS HAIGH MNEILL PTY LIMITED (ACN 002 876 771)c PAGBY PTY LIMITED (ACN 005 203 136) CHERYL ANN CHANG |
JUDGE(S): | NORTH J |
DATE: | 29/05/98 |
PLACE: | MELBOURNE |
EX TEMPORE REASONS FOR JUDGMENT
This application is brought by the first to third, fifth, sixth and eighth respondents (the respondents) seeking orders that the relevant respondents be released from undertakings provided to the Court on 6 May 1997. On that day, the second, third and eighth respondents gave an undertaking in respect of certain properties to give seven days prior written notice to the applicant’s solicitors of any intention to sell or encumber or diminish his, her or its interest in the property. Also on that day, the fifth respondent gave an undertaking not to sell or encumber or diminish its interest in certain properties save as is necessary for a specified development of one of the properties.
In the proceedings the properties, or interests in them, are claimed by the applicant. The proceedings are presently adjourned part heard before Mansfield J.
The purpose of the present application is to allow the respondents to use the properties as security for the advance of $105,000, said to be necessary to further fund the litigation.
It seems to me clear that this application must fail. There is no dispute that the proper approach is for the Court to determine vhwhether there are any resources other than those that are subject to the undertakings given by the relevant respondents which are available to fund the litigation.
There are some resources potentially available to the respondents to fund this litigation. First, the company, Robins Haigh McNeill Pty Ltd (the sixth respondent), may be prepared to fund the litigation on behalf of the respondents. To date, the company has provided $180,000 or more and the sister of Mr Robins is a shareholder. In the absence of further explanation of the state and intention of that company, I infer that it is likely to continue to fund the litigation.
Second, the respondents probably have access to the equity, or some part of the equity, of Mrs Chang in the Wirrawee property. She is the wife of Mr Robins. Conservatively, her equity is worth $60,000. Third, Mr Meissner, the third respondent, has an interest in an estate, the value of which is not altogether clear but which seems to be significant relative to the $105,000 sought in this application. Fourth, Mr Meissner holds a charge over the business of VD Graphics. The charge secures repayment of some funds, the amount of which was not revealed.
Those four items of property are possible sources of funds for the continuation of this litigation, particularly where the amount required is just over $100,000.
A further and important matter to be taken into account in the exercise of my discretion is the fact that part of the claim by the respondents is to be released from undertakings in respect of properties owned by Coldwick Pty Ltd, the fifth respondent. Mr Whelan QC, who appeared on behalf of the applicants, outlined the state of evidence in the proceeding in relation to the Coldwick properties. He summarised the situation by saying that the respondents' position in the proceedings in relation to the Coldwick properties is hopeless. Mr Marantelli, who appeared as counsel for the respondents, did not contest the summary of the state of the evidence, although perhaps he would not describe the situation in terms quite as graphic as Mr Whelan. Thus, the common position of the parties is that there is a real chance that the applicants will succeed in relation to their claims over the Coldwick properties. That factor, taken with possible funding from the sources I have outlined, leads me to the conclusion that the respondents' application should be rejected.
The order of the court is that the respondents' application is dismissed with costs.
| I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice North |
Associate:
Dated: 4/08/98
| Counsel for the Applicant: | Mr S P Whelan, QC |
| Solicitor for the Applicant: | Marshalls & Dent |
| Counsel for the 1st, 2nd, 3rd, 5th, 6th & 8th Respondents: | Mr S E Marantelli |
| Solicitor for the 1st, 2nd, 3rd, 5th, 6th & 8th Respondents: | Hall & Wilcox |
| Date of Hearing: | 29 May 1998 |
| Date of Judgment: | 29 May 1998 |
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