FEDERAL COURT OF AUSTRALIA
Jemmott v ENA Development Pty Ltd (in liq) (Receiver Appointed) [2022] FCA 1134
File number(s): NSD 662 of 2022 Judgment of: HALLEY J Date of judgment: 21 September 2022 Date of publication of reasons: 23 September 2022 Catchwords: PRACTICE AND PROCEDURE – application for transfer of proceedings to the Supreme Court of New South Wales (Supreme Court) pursuant to s 1337H of the Corporations Act 2001 (Cth) and r 27.21 of the Federal Court Rules 2011 (Cth) – application for adjournment of hearing dismissed – where more appropriate for the proceeding to be determined by Supreme Court having regard to the interests of justice Legislation: Corporations Act 2001 (Cth) ss 1337H, 1337R
Federal Court Rules 2011 (Cth) r 27.21
Cases cited: BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61
Dwyer v Hindal Corporate Pty Ltd (2005) 52 ACSR 335
In the matter of ENA Development Pty Ltd [2022] NSWSC 54
In the matter of ENA Development Pty Ltd (in liq) [2022] NSWSC 919
In the matter of Peter G Ward Industries Pty Limited [2020] NSWSC 339
Yeo, in the matter of Armstrong and Shaw Pty Ltd (in liq) v Whiteman [2020] FCA 849
Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 46 Date of hearing: 21 September 2022 Solicitor for the Plaintiff: Mr Carbone of Sydney Law Practice Pty Ltd Counsel for the Defendants: Mr M L Rose Solicitor for the Defendants: ERA Legal ORDERS
NSD 662 of 2022 BETWEEN: RONALD JEMMOTT
Plaintiff
AND: ENA DEVELOPMENT PTY LTD (IN LIQUIDATION) (RECEIVER APPOINTED)
First Defendant
PETER IN HIS CAPACITY AS LIQUIDATOR OF ENA DEVELOPMENT PTY LTD (IN LIQUIDATION) KREJCI
Second Defendant
ORDER MADE BY:
HALLEY J
DATE OF ORDER:
21 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.Pursuant to s 1337H of the Corporations Act 2001 (Cth) and r 27.21 of the Federal Court Rules 2011 (Cth), these proceedings no. NSD 662 of 2022 be transferred to the Supreme Court of New South Wales.
2.The costs of these proceedings to date and of the amended interlocutory process dated 14 September 2022 be costs in the cause.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
HALLEY J:
INTRODUCTION
On 21 September 2022, I made orders transferring these proceedings to the Supreme Court of New South Wales pursuant to s 1337H of the Corporations Act 2001 (Cth) (Act) and r 27.21 of the Federal Court Rules 2011 (Cth) (Federal Court Rules).
These are my reasons for making that order and refusing an application by the plaintiff’s solicitor, Mr Carbone…
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- Case
- [2022] FCA 1134
- Decision Date
CaseChat Overview and Summary
The court considered the nature of the relief sought by the applicant and the overlap between the relief sought in the current proceedings and the relief sought in the proceedings in the Supreme Court of New South Wales. The court found that the relief sought in the current proceedings was substantially the same as the relief sought in the proceedings in the Supreme Court of New South Wales. Additionally, the court found that the matters raised in the current proceedings were closely connected to the matters raised in the proceedings in the Supreme Court of New South Wales. Therefore, the court concluded that it was more appropriate for the proceeding to be determined by the Supreme Court of New South Wales, having regard to the interests of justice.
The court transferred the proceedings to the Supreme Court of New South Wales pursuant to s 1337H of the Corporations Act 2001 (Cth) and r 27.21 of the Federal Court Rules 2011 (Cth). The court also ordered that the costs of these proceedings to date and of the amended interlocutory process dated 14 September 2022 be costs in the cause. The dismissal of the adjournment application was a separate decision made by the court, which is not discussed in detail here.
Orders
Orders of the court
1. Pursuant to s 1337H of the Corporations Act 2001 (Cth) and r 27.21 of the Federal Court Rules 2011 (Cth), these proceedings no. NSD 662 of 2022 be transferred to the Supreme Court of New South Wales.
2. The costs of these proceedings to date and of the amended interlocutory process dated 14 September 2022 be costs in the cause.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Mr Jemmott did not file any written submissions nor evidence in opposition to the transfer application and beyond referring to his submissions in support of his oral application for an adjournment of the transfer application, Mr Carbone did not advance any oral submissions on behalf of Mr Jemmott in opposition to the transfer applications.CONSIDERATION It is convenient to identify first the extent of the overlap between the relief sought by Mr Jemmott in the Originating Process and the relief sought by Mr Jemmott and the other applicants in the 14 August Motion in the 2022 Proceedings. Mr Jemmott seeks the following relief in the Originating Process:1.Pursuant to section 482(1) of the Act, that the winding up of the Company be terminated or stayed indefinitely.2.Pursuant to section 482(3) of the Act, that the management and control of the Company revert back to the director; and3.In the alternative to order 1 and 2, Peter Krecji's appointment as liquidator and receiver of ENA Development Pty Ltd (in liq) be terminated under the division 90-15 of the Insolvency Practice Schedule.( Corporations) and Domenic Calabretta be appointed as liquidator [and receiver] of that company.4.Further and alternatively, that directions be given in the winding up of ENA Development Pty Limited (in liq), that the winding up be terminated upon the happening of the following events:a.Payment of the petitioner's debt in the amount of $46,164 plus costs from monies as were held in Trust from the sale of the ASX Shares Comsec Account ENA Development at the date of Mr Krecji's appointment as liquidator, and that are presently in an account maintained by the liquidator of ENA Developments Pty Limited;b.The filing of deeds of deferral of or release by the Creditors listed in Schedule 1, from the payment of their debts by the liquidator, in lieu of the repayment of their debts:Creditors as per creditor's schedule: Source: Liquidators Report to Creditors of dated 24 April 2022, refers page 25, list of creditors.c.The liquidator's reasonable fees and expenses in administering the winding up, from the fund presently maintained by the liquidator;5.The company and trust both had a substantial positive net asset position of $3,100,000 and liquid assets (cash flow) position of $120,000 as at the date of winding up6.A declaration that One T Development Pty Ltd as the Trustee of ENA Development Trust as or after 30 March 2021 to hold the assets on trust under Section 63 of the Trustee Act 1925; Property known as Lot 36, 146 Parramatta Road, Homebush NSW 2140, the Fund of $1,900,000 now sitting in the Liquidator Trust Account, realisation of Shares to the value of $115,000 now sitting the liquidator’s trust account, the value of $9700 Cash at back Account CBA ENA Development The relief that was sought by Mr Jemmott and the other applicants in the 14 August Motion relevantly included:1.To terminate the winding-up pursuant to section 482 of the Corporations Act 2001 (Cth) on the basis the company has sufficient funds to pay creditors and the liquidator.2.In the alternative to order 1, Peter Krecjrs appointment as liquidator and receiver of ENA Development Pty Ltd (in liq) be terminated and Domenic Calabretta be appointed as liquidator [and receiver] of that company.3.Further and alternatively, that directions be given in the winding up of ENA Development Pty limited (in liq), that the winding up be terminated upon the happening of the following events:a.Payment of the petitioner's debt in the amount of $46,164_from the monies as were held in Court or from the sale of the ASX Shares Comsec Account ENA Development at the date of Mr Krecji's appointment as liquidator, and that are presently in an account maintained by the liquidator of ENA Developments Pty Limited;b.The filing of deeds of deferral of or release by the Second to Seventh Defendants(as Creditors) from the payment of their debts by the liquidator, in lieu of the repayment of their debts:Creditors as per creditor's schedule: Source: Liquidators Report to Creditors of 27-04-2022 refers page 25, list of creditors.c.The liquidator's reasonable fees and expenses in administering the winding up, from the fund presently maintained by the liquidator;…8.That the court set aside, the orders of Justice Black made on 3 February 2022, in which Mr Krejci was appointed as Receiver over Lot 36, 146 Parramatta Road, Homebush NSW 2140.9.In lieu of the orders made on 3 February 2022, the Court order that One T Development Pty Ltd as the Trustee of ENA Development Trust, to hold the assets of the trust pending further order but not to deal with them otherwise than upon the giving of 14 days' notice to the parties..Particulars of the Trust Assets(a) Lot 36, 146 Parramatta Road, Homebush NSW 2140(b) Fund in Supreme Court $1,900,000 (now sitting with the liquidator)(c) ASX Share Portfolio $115,000, Comsec Account ENA Development(d) Further Cash at bank CSA ENA Development Pty Ltd $9000