Khoury v Rosemist Holdings Pty Ltd (in Liq)

The case of Khoury v Rosemist Holdings Pty Ltd (in Liq) [2003] WASC 228 involves a plaintiff, Fouad Antoun Khoury, who is seeking an interlocutory injunction against the first defendant, Rosemist Holdings Pty Ltd, a company in liquidation. The application was heard ex parte and the court had to decide whether to grant an interim Mareva injunction against the company in liquidation. The plaintiff alleged that the defendant company had transferred its assets to another party to defraud creditors, including the plaintiff. The plaintiff claimed that the transaction was voidable under s 89 of the Property Law Act as being a transaction intended to defraud creditors.
The court considered the legal issues of whether the plaintiff had a sufficient interest to bring the application to set aside the transaction in the absence of the liquidator of the defendant company and whether the liquidator was primarily entitled to challenge the impugned transaction. The court also considered whether the plaintiff's claims were barred by the expiration of a limitation period. The court held that the liquidator of the defendant company was primarily entitled to challenge the impugned transaction and that the plaintiff had not shown a sufficient interest to bring the application. The court also noted that the detailed provisions in the Corporations Act (2001) (Cth) provided a variety of options to pursue fraudulent preferential or uncommercial transactions.
The court adjourned the application for the Mareva injunction sine die and directed that a copy of the writ, the statement of claim, the summons for the injunction, the affidavit of Mr Khoury, this order and the reasons for decision be served upon the liquidator of Rosemist Holdings Pty Ltd. The court also granted liberty to any party to apply to join the liquidator of Rosemist Holdings Pty Ltd in these proceedings or for the liquidator to apply to be joined on his own initiative and ordered a stay of proceedings against Rosemist Holdings Pty Ltd (in Liquidation) pending the outcome of any application by the plaintiff for leave to proceed against the company in liquidation. The court reserved costs of this afternoon's application.