Jackgreen (International) Pty Ltd - [2010] NSWSC 817

CITATION: Jackgreen (International) Pty Ltd [2010] NSWSC 817

HEARING DATE(S): 19/07/10, 22/07/10

JUDGMENT DATE :
27 July 2010

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: 1. The Court declares that any amount payable by the Second Defendant to the Second Plaintiff pursuant to paragraph 3.15.13 of the National Electricity Rules falls within the definition of ‘Secured Property’ in the Charge provided by the Second Plaintiff to Australian Executor Trustees Limited dated 6 November 2007 and registered No. 1545824 in the register of company charges at the Australian Securities and Investments Commission.
2. The Court orders that the Second Defendant pay any amount presently due to the Second Plaintiff pursuant to paragraph 3.15.13 of the National Electricity Rules to the First plaintiffs as receivers and managers of the Second Plaintiff.
3. The Court declares that the First Plaintiffs are not an electricity entity within the meaning of section 120X of the Electricity Act 1994 (Qld).
4. The Court orders that the First Plaintiffs' costs and expenses of this application are to form part of the costs of the receivership of the Second Plaintiff.

CATCHWORDS: CORPORATIONS - receivers controllers and managers - receivers appointed out of court - whether sum payable to company is within charge held by receivers' appointor - liabilities of receivers - where company may be susceptible to civil penalty order under Queensland electricity legislation - whether personal liability may attach to receivers - receivers' lien in support of indemnity by company - proposed retention by receivers upon retirement - no demonstrated basis for finding of actual or contingent liability of receivers

LEGISLATION CITED: Electricity Act 1994 (Qld), Chapter 5, Part 1A, ss 22, 25, 26, 27, 28, 29, 30 to 36A, 37, 38, 39, 46, 47, 55D to 55G, 57, 58, 120A, 120X, 133, 226A, 240A
Electricity-National Scheme (Queensland) Act 1997 (Qld)
National Electricity Law enacted by the National Electricity (South Australia) Act 1996 (SA), s 87

CATEGORY: Principal judgment

CASES CITED: Allen v Allen (1955) 55 SR(NSW) 75
Australian Securities and Investments Commission; Re Lanepoint Enterprises Pty Ltd v Lanepoint Enterprises Pty Ltd (2006) 64 ATR 524; [2006] FCA 1493
Dyson v Peat [1917] 1 Ch 99
Flexible Manufacturing Systems Pty Ltd v Fernandez [2003] FCA 1491; (2004) 22 ACLC 47
Hill v Venning (1979) 4 ACLR 555
Mellor v Mellor [1992] 1 WLR 517
Re Sutherland [1963] AC 235
Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129
Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702

TEXTS CITED: S Frisby and M Davis-White (eds), “Kerr and Hunter on Receivers and Administrators”, 19th edition (2010)

PARTIES: Sule Arnautovic and John Kukolvski as joint receivers and managers of Jackgreen (International) Pty Limited - First Plaintiffs
Jackgreen (International) Pty Limited - Second Plaintiff
Atle Crowe-Maxwell and John Frederick Lord as deed administrators of Jackgreen (International) Pty Limited - First Defendants
Australian Energy Market Operator Ltd - Second Defendant
Queensland Competition Authority - Third Defendant

FILE NUMBER(S): SC

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 Jackgreen (International) Pty Ltd

Details

AGLC: Jackgreen (International) Pty Ltd [2010] NSWSC 817
Case: [2010] NSWSC 817
Decision Date: 27 July 2010

CaseChat Overview and Summary

The parties involved in the dispute were Jackgreen (International) Pty Ltd, a company, and receivers appointed out of court. The nature of the dispute centred around whether a sum payable to the company was within the charge held by the receivers' appointor, and if the receivers could be held personally liable for any liabilities incurred by the company. The case was heard in the Supreme Court of Queensland. The legal issues the court was required to decide were whether the receivers could be held personally liable for the company's liabilities, particularly under Queensland electricity legislation, and whether there was a demonstrated basis for finding actual or contingent liability of the receivers.

The court considered the receivers' lien in support of indemnity by the company, and the proposed retention by the receivers upon retirement. The court found that the receivers were not personally liable for the company's liabilities, and that there was no demonstrated basis for finding actual or contingent liability of the receivers. The court held that the receivers were not liable for any civil penalty orders that may be imposed on the company under the Queensland electricity legislation. The court also found that the receivers' lien in support of indemnity by the company did not amount to a personal liability of the receivers, and that the proposed retention by the receivers upon retirement was not a demonstrated basis for finding actual or contingent liability of the receivers.

The court held that the sum payable to the company was within the charge held by the receivers' appointor. The court found that the receivers were not personally liable for any liabilities incurred by the company, and that the receivers' lien in support of indemnity by the company did not amount to a personal liability of the receivers. The court also found that the proposed retention by the receivers upon retirement was not a demonstrated basis for finding actual or contingent liability of the receivers. The final orders of the court were that the receivers were not personally liable for the company's liabilities, and that the sum payable to the company was within the charge held by the receivers' appointor.

Orders