Kijurina and Albarran in their capacity as liquidators of ET Family Pty Limited (in Liq) v Taouk
[2014] FCA 542
•26 May 2014
FEDERAL COURT OF AUSTRALIA
Kijurina and Albarran in their capacity as liquidators of ET Family Pty Limited (in Liq) v Taouk; in the matter of ET Family Pty Limited (in Liq) [2014] FCA 542
Citation: Kijurina and Albarran in their capacity as liquidators of ET Family Pty Limited (in Liq) v Taouk; in the matter of ET Family Pty Limited (in Liq) [2014] FCA 542 Parties: BRENT TREVOR-ALEX KIJURINA AND RICHARD ALBARRAN IN THEIR CAPACITY AS LIQUIDATORS OF ET FAMILY PTY LIMITED (IN LIQUIDATION) ACN 143 414 662, BRENT TREVOR-ALEX KIJURINA AND RICHARD ALBARRAN IN THEIR CAPACITY AS LIQUIDATORS OF MEA GROUP PTY LIMITED (IN LIQUIDATION) ACN 159 812 870, ET FAMILY PTY LIMITED (IN LIQUIDATION) ACN 143 414 662 and MEA GROUP PTY LIMITED (IN LIQUIDATION) ACN 159 812 870 v EDMOND TAOUK, CLAIRE BACHOUR TAOUK and NATIONAL AUSTRALIA BANK LIMITED ACN 159 812 870 File number: NSD 354 of 2014 Judge EDMONDS J Date of judgment: 26 May 2014 Legislation: Corporations Act 2001 (Cth) s 1323(1)
Federal Court of Australia Act 1976 (Cth) s 57(1)Date of hearing: 22 May 2014 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 12 Counsel for the Plaintiffs: Mr CD Freeman Solicitor for the Plaintiffs: Nelson McKinnon Lawyers Counsel for the Second Defendant: Ms C Latham Solicitor for the Second Defendant: Horowitz & Bilinsky Counsel for the Third Defendant: Ms E Birkett Solicitor for the Third Defendant: Gadens
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 354 of 2014
IN THE MATTER OF ET FAMILY PTY LIMITED (IN LIQUIDATION)
BETWEEN: BRENT TREVOR-ALEX KIJURINA AND RICHARD ALBARRAN IN THEIR CAPACITY AS LIQUIDATORS OF ET FAMILY PTY LIMITED (IN LIQUIDATION) ACN 143 414 662
First PlaintiffBRENT TREVOR-ALEX KIJURINA AND RICHARD ALBARRAN IN THEIR CAPACITY AS LIQUIDATORS OF MEA GROUP PTY LIMITED (IN LIQUIDATION) ACN 159 812 870
Second PlaintiffET FAMILY PTY LIMITED (IN LIQUIDATION) ACN 143 414 662
Third PlaintiffMEA GROUP PTY LIMITED (IN LIQUIDATION) ACN 159 812 870
Fourth PlaintiffAND: EDMOND TAOUK
First DefendantCLAIRE BACHOUR TAOUK
Second DefendantNATIONAL AUSTRALIA BANK LIMITED ACN 159 812 870
Third Defendant
JUDGE:
EDMONDS J
DATE OF ORDER:
26 MAY 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Sule Arnautovic of Level 4, 55 Hunter Street, Sydney, NSW, 2000 be appointed receiver (“Receiver”) without security to the properties referred to in the Schedule (“Properties”).
2.The Receiver have:
(i)The power to collect, get in and receive the rental for each of the Properties and to manage the same, and to pay and discharge all expenses properly incurred in respect of the management of each of the Properties; and
(ii)The same powers as in ss 420(2)(a), (b), (e), (f), (g),(j), (p) and (q) of the Corporations Act 2001 (Cth).
THE COURT NOTES THAT:
3.Nothing in orders 1 and 2 shall prevent any secured creditor of the second defendant to take possession of, appoint a receiver or receiver and manager or otherwise deal with any property of the second defendant over which the secured creditor has security.
SCHEDULE
(a)The property known as 30/402 Chapel Road, Bankstown in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier 30/SP65391:
(b)The property known as 31/402 Chapel Road, Bankstown in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier 31/SP65391;
(c)The property known as 32/402 Chapel Road, Bankstown in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier 32/SP65391; and
(d)The property known as Shop 2, 74 Kendal Street, Cowra in the State of New South Wales being the whole of the land in Certificate of Title Folio Identifier 1/739481.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 354 of 2014
IN THE MATTER OF ET FAMILY PTY LIMITED (IN LIQUIDATION)
BETWEEN: BRENT TREVOR-ALEX KIJURINA AND RICHARD ALBARRAN IN THEIR CAPACITY AS LIQUIDATORS OF ET FAMILY PTY LIMITED (IN LIQUIDATION) ACN 143 414 662
First PlaintiffBRENT TREVOR-ALEX KIJURINA AND RICHARD ALBARRAN IN THEIR CAPACITY AS LIQUIDATORS OF MEA GROUP PTY LIMITED (IN LIQUIDATION) ACN 159 812 870
Second PlaintiffET FAMILY PTY LIMITED (IN LIQUIDATION) ACN 143 414 662
Third PlaintiffMEA GROUP PTY LIMITED (IN LIQUIDATION) ACN 159 812 870
Fourth PlaintiffAND: EDMOND TAOUK
First DefendantCLAIRE BACHOUR TAOUK
Second DefendantNATIONAL AUSTRALIA BANK LIMITED ACN 159 812 870
Third Defendant
JUDGE:
EDMONDS J
DATE:
26 MAY 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This is an interlocutory application by the plaintiffs for the following relief:
1.An order pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) and/or s 1324 of the Corporations Act 2001 (Cth) that all rental income received from properties referred to in the Schedule (“Properties”) be paid into a controlled monies bank account (“CM Account”) to be established by the Plaintiffs’ Solicitor with the Second Defendant’s Solicitor and the Plaintiffs’ Solicitor as joint signatories.
2.An order that the plaintiffs and second defendant be permitted to pay all bona fide expenses relating to the Properties from the moneys in the CM Account.
3.An order pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) and/or s 1324 of the Corporations Act 2001 (Cth) that the Second Defendant pay to the CM Account the sum of $12,000 within 7 days of the date of this order.
4.Alternatively to orders 1-3:
(a)An order pursuant to s 1323(1)(h) of the Corporations Act 2001 (Cth) or s 57(1) of the Federal Court of Australia Act 1976 (Cth) that Sule Arnautovic of Level 4, 55 Hunter Street, Sydney NSW 2000 be appointed receiver (“Receiver”) without security to the Properties;
(b)An order that the Receiver have:
(i)The power to collect, get in and receive the rental for each of the Properties and to manage the same, and to pay and discharge all expenses properly incurred in respect of the management of each of the Properties; and
(ii)The same powers as in ss 420(2)(a), (b), (e), (f), (g),(j), (p) and (q) of the Corporations Act 2001 (Cth).
(c)Nothing in orders 4(a) and 4(b) shall prevent any secured creditor of the second defendant to take possession of, appoint a receiver or receiver and manager or otherwise deal with any property of the second defendant over which the secured creditor has security.
SCHEDULE
(e)The property known as 30/402 Chapel Road, Bankstown in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier 30/SP65391:
(f)The property known as 31/402 Chapel Road, Bankstown in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier 31/SP65391;
(g)The property known as 32/402 Chapel Road, Bankstown in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier 32/SP65391; and
(h)The property known as Shop 2, 74 Kendal Street, Cowra in the State of New South Wales being the whole of the land in Certificate of Title Folio Identifier 1/739481.
BACKGROUND
On 4 April 2014, Jacobson J made orders, including orders in the following terms:
2.Upon the Plaintiffs by their solicitor giving to the Court the usual undertakings as to damages, the Second Defendant be restrained until further order from dealing with, transferring, mortgaging or otherwise encumbering each of the following properties:
(a)The property known as 30/402 Chapel Road, Bankstown in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier 30/SP65391;
(b)The property known as 31/402 Chapel Road, Bankstown in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier 31/SP65391;
(c)The property known as 32/402 Chapel Road, Bankstown in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier 32/SP65391;
(d)The property known as Shop 2, 74 Kendal Street, Cowra in the State of New South Wales being the whole of the land in Certificate of Title Folio Identifier 1/739481.
3.Upon the Plaintiffs by their solicitor giving to the Court the usual undertakings as to damages, the Second Defendant be restrained until further order from transferring, mortgaging, encumbering or otherwise dealing with all rental and moneys received from each of the properties referred to in paragraph 1 above (“Properties”), except
(a)For the payment of bona fide expenses related to each of the Properties; or
(b)Upon terms first agreed in writing between the solicitors for the Plaintiffs and the solicitors for the Second Defendant.
On 8 May 2014, I made orders for the filing and service of process on the part of the defendants to further progress the proceeding for hearing as well as an order in the following terms:
4.The second defendant file and serve on the plaintiffs’ Solicitor an affidavit by 15 May 2014 which disclosed:
(a)All rental income received from the property known as 74 Kendall Street, Cowra, New South Wales (“Cowra Property”), from 4 April 2014 to the date of swearing the Affidavit;
(b)The bank, account number and branch into which all the rent income from the Cowra Property is received;
(c)All payments from the bank account referred to in order 4(b) from 4 April 2014 to the date of swearing the Affidavit, including the date, amount and the payee of each payment; and
(d)All expenses of the Cowra Property paid from 4 April 2014 to the date of swearing the Affidavit, including the date, amount and payee of each payment.
On 14 May 2014, the second defendant, in response to a notice to produce, produced a copy of a statement from National Australia Bank Ltd showing all transactions on the account bearing number 94-891-9337 for the period 4 April 2014 to 6 May 2014 (“NAB Statement”).
On 15 May 2014, the second defendant filed an affidavit, said to be made by her in accordance with the order I made on 8 May 2014, in which she deposed:
a)From 4 April 20134 until 14 May 2014, I have received a total of $20,239.95 rental and the tenant’s proportion of outgoings from 74 Kendal Street, Cowra. On 1 May 2014, $679.80 was paid by one of the tenants at Cowra into the NAB account;
b)The monies in the first sentence (a) above were paid into the St. George Bank at Roselands account number 458468908. From the payments in the St George Bank account, the following payments have been made:
Ÿ 9 April 2014 - $2,000 to my NAB account;
Ÿ 10 April 2014 - $1,000 to my NAB account;
Ÿ 17 April 2014 - $5,000 to my NAB account;
Ÿ 23 April 2014 - $4,000 to my NAB account.
c)I have paid the following expenses in relation to the Cowra property between 4 April 2014 and 14 May 2014:
Ÿ 13 May 2014 - $4,488 payment to Cowra Shire Council;
Ÿ 8 April 2014 - $2,401.59 to the NAB being interest charges on the mortgage;
Ÿ 6 May 2014 - $2,049.16 interest charge on mortgage to NAB;
Ÿ 30 April 2014 – one payment to the NAB being fee account in relation to the mortgage over the Cowra property. This payment was for $100.
On 15 May 2014, the plaintiffs’ solicitors wrote to the second defendant’s solicitors in the following terms:
We refer to:
1. your letters of 6 and 15 May 2014;
2.the orders of the Court made on 4 April 2014 (copy enclosed) and 8 May 2014; and
3. the affidavit of Claire Taouk sworn 15 May 2014. We note that:
We note that:
1.The orders of 4 April 2014 included an order that your client be restrained until further order from transferring, mortgaging, encumbering or otherwise dealing with all rental and moneys received from each of the properties the subject of the Proceedings (Properties) except for the payment of bona fide expenses.
2.In response to our request that your client identify the bank account to which the rental income is being paid, you sent us a letter on 6 May 2014 which stated “all rent is paid into our client’s account details of which are NAB, account number 948 919 337”.
3.It appears from your client’s affidavit of 15 May 2014 that the rent is in fact paid into a St George bank account.
4.It also appears that, in breach of the orders of the Court made on 4 April 2014, your client is transferring rent to an Account identified in her affidavit as “my NAB account”.
Our client is concerned that your client is dealing with the rental income from the Properties in breach of the orders made by the Court on 4 April 2014. Accordingly, we require your client to agree to the following:
1.Pay all rental income from the Properties into a controlled monies account, with the writer and you as joint signatories. The parties will agree to continue to pay all bona fide expenses related to each of the Properties; and
2. Repay the $12,000 she withdrew into the controlled monies account.
If your client does not agree in writing to the above by 4 pm on Friday, 16 May 2014, we are instructed to relist the matter and seek orders giving effect to the above.
Please also identify how your client applied the $900,000 advance received from the National Australia Bank Ltd.
No response to this letter was received.
INTERLOCUTORY APPLICATION
On the hearing of the interlocutory application on 22 May 2014, I granted the second defendant leave to file in Court and read an affidavit sworn by her that day (Ex A). Exhibit A read:
1. I refer to my affidavit of 15 May 2014.
2.On or around 11 or 12 March 2014, I tried to access the personal account I held with the NAB with account number 948 919 337 (“my NAB Account”) online. I saw that it showed the available balance as $0 although I could see on the screen that money had been credited to the account, but those funds were not available . This is the account that the rent payments in relation to the Cowra property are paid. This is also the account from which I paid expenses relating to the Cowra property and the properties in Chapel Road, Bankstown.
3.On 14 March 2014, I sent an e-mail to Rebecca Kent at NAB Campbelltown asking her why funds were not available in my NAB Account. A copy of this e-mail is annexed hereto and marked “A”.
4.On 17 March 2014, I received an e-mail from Rebecca Kent stating that my NAB Account should be operational. A copy of this e-mail is annexed hereto and marked “B”.
5.I continued to have problems with my NAB Account in early April 2014. Sometimes funds would appear, but these funds would not be available.
6.On 9 April 2014, I sent a further e-mail to Rebecca Kent in which I again raised the problem of my NAB Account being frozen. A copy of this e-mail is annexed hereto and marked “C”.
7.As 1 was having trouble accessing my NAB Account, on 13 March 2014, I sent an e-mail to Coles Group (the tenant of the Cowra Property) asking that they pay the rent which was due on 15 April 2014 into a St George Bank account held in the name of my son, Amjad Taouk. A copy of this e-mail is annexed hereto and marked “D”. At the time I sent this e-mail I didn’t realise that the account number I gave to Coles Group related to an account which had been closed.
8.I sent this e-mail around a month before the payment was due as I knew that Coles Group could take some time to process my request as they are a big company.
9.On 4 April 2014, I sent a further e-mail to Coles Group asking that they pay the rent due on 15 April 2014 to an account with St George Bank held by Amjad with account number 458 468 908 (“the St George Account”). A copy of this e-mail is annexed hereto and marked “E”.
10.A copy of the transaction history for the St George Account in the period from 4 April 2014 to 15 May 2014 is annexed hereto and marked “F”.
11.Between around 9 April 2014 and 23 April 2014, Amjad transferred amounts to my NAB Account totalling $12,000 as set out at paragraph 1(b) of my affidavit of 15 May 2014. I do not know what transfers Amjad made from his St George Account after 15 April 2014. I will request that Amjad transfer to my NAB Account the sum of $8,239.95. A copy of the transaction history of my NAB Account in the period from 4 April 2014 to 16 May 2014 is annexed hereto and marked “G”.
12.In relation to the payments set out at paragraph 1(c) of my affidavit of 15 May 2014, the expenses set out therein were paid from my NAB Account and can be seen in the transaction history at annexure G.
13.On 15 May 2014, I received a further payment from Coles Group in relation to rent for rent for the Cowra Property. This payment was made into my NAB Account.
Counsel for the plaintiffs, in reliance on what was said to be “a breach of Jacobson J’s order”, pressed for the alternative relief set out in para 4 of the interlocutory application, namely, the appointment of a receiver with power to collect, get in and receive the rental for each of the Properties, to manage them and to pay and discharge all expenses properly incurred in respect of that management.
Counsel for the second defendant informed the Court that she had instructions to consent to the relief sought in paras 1 and 2 of the interlocutory application, although not para 3, but to oppose the alternative relief sought in para 4.
Counsel for the plaintiffs explained that the difficulty his clients had with the relief in paras 1 and 2 was that their efficacy could be frustrated at the whim of the second defendant if she were to issue instructions that her current solicitors were to cease acting for her; this was “just going to cause problems down the track”. I note that even at this early stage of the proceedings, the second defendant has already changed her legal representatives on one occasion.
CONCLUSION
My review of all the evidence (not just the evidence outlined above) that has been read in support of, and in opposition to, the plaintiffs’ application, has led me to the conclusion that it is both “desirable … for the purpose of protecting the interests of” the plaintiffs (s 1323(1) of the Corporations Act 2001 (Cth)) and “just or convenient” (s 57(1) of the Federal Court of Australia Act 1976 (Cth)) that I accede to the preferred and alternative relief sought by the plaintiffs. There are too many anomalies and inexplicable inconsistencies in the second defendant’s evidence concerning the payment of the April rent from the Cowra property into her son’s bank account with St George Bank and the disbursements of those moneys from that account, to allow me to have sufficient confidence that any relief other than the relief sought in para 4 of the interlocutory application would secure for the plaintiffs adequate protection of their interests.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. A/g Associate:
Dated: 26 May 2014
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