KIS Realty Pty Ltd v Yeo and Rimbaldi
[2016] WASC 149 (S)
•8 NOVEMBER 2016
KIS REALTY PTY LTD -v- YEO & RIMBALDI [2016] WASC 149 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 149 (S) | |
| Case No: | COR:215/2015 | 31 MAY, 7 JUNE & 25 AUGUST 2016 | |
| Coram: | MASTER SANDERSON | 8/11/16 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Amount of debt subject of proof specified No interest on debt allowed | ||
| B | |||
| PDF Version |
| Parties: | KIS REALTY PTY LTD ANDREW REGINALD YEO & GUISEPPE MICHELE RIMBALDI as Liquidators of WESTPOINT FINANCE PTY LTD |
Catchwords: | Supplementary reasons |
Legislation: | Corporations Act 2001 (Cth) |
Case References: | KIS Realty Pty Ltd v Yeo & Rimbaldi [2016] WASC 149 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ANDREW REGINALD YEO & GUISEPPE MICHELE RIMBALDI as Liquidators of WESTPOINT FINANCE PTY LTD
Defendants
Catchwords:
Supplementary reasons
Legislation:
Corporations Act 2001 (Cth)
Result:
Amount of debt subject of proof specified
No interest on debt allowed
Category: B
Representation:
Counsel:
Plaintiff : Mr A Metaxas
Defendants : Mr H West
Solicitors:
Plaintiff : Metaxas & Hager
Defendants : Gadens Lawyers
Case(s) referred to in judgment(s):
KIS Realty Pty Ltd v Yeo & Rimbaldi [2016] WASC 149
1 MASTER SANDERSON: On 19 May 2016 I delivered judgment in this matter: KIS Realty Pty Ltd v Yeo & Rimbaldi [2016] WASC 149. Subsequent to the delivery of my reasons the defendants raised two matters they said were relevant to the ultimate determination of the application. The first had to do with the amount of the debt. The defendants submitted although the issue had been raised in both oral and written submissions it was not specifically dealt with in my reasons. The second issue related to interest. It was said that pursuant to s 563B of the Corporations Act 2001 (Cth) interest could not be allowed on any debt. This was not a point which had been raised either in written or oral submissions by the defendant.
2 In supplementary submissions dated 27 July 2016 the defendants summarised their position as follows:
8. The plaintiff's claim was for payment of Service Fees under the Services Agreement.
9. The Services Agreement provided (at clause 3.2) that: 'in consideration for providing Administrative Services, WPF agrees to pay the Service Fees' (defined in item 2 of the schedule).
10. Clause 1.1 defined 'Administrative Services' as the services defined in item 2 of the schedule. Item 2 of the schedule sets out what the 'Administrative Services' include.
11. Unless the 'Administrative Services' were provided the plaintiff had no entitlement to payment of the Service Fees. But the plaintiff did not adduce any evidence that it had provided the 'Administrative Services' this crucial component of its claim was therefore lacking.
3 The way in which the claim was made up was set out by a director of the plaintiff in a proof of debt lodged with the defendants. A copy of that proof of debt appears as attachment NPC 2 to the affidavit of Mr Carey sworn 31 August 2015. Under the heading 'Remarks' there appears the following:
See attached ledger account of KIS Realty Pty Ltd in accounts of Westpoint Finance Pty Ltd and attached loan agreement. Ledger account of Westpoint Finance Pty Ltd in accounts of KIS Realty Pty Ltd. Services Agreement and charge.
4 There is attached to the proof of debt a copy of the Service Agreement and a copy of the fixed and floating charge. There then appears (on page 67 of the affidavit) a note of how the amount in the proof of debt is calculated. Consistent with what is contained in the remarks this document would appear to have been part of the books and records of Westpoint Finance Pty Ltd. At no stage was it suggested otherwise by the defendants.
5 Nor can it be suggested Administrative Services were not provided. Mr Carey says they were. There is an agreement between Westpoint Finance Pty Ltd and the plaintiff to that effect. Accordingly in my view there is no doubt that the licence fee in the amount claimed was payable and should be admitted as a proof of debt.
6 As to the second question the defendants are quite right that interest is not payable from the date the company went into administration. I provided the plaintiff with the opportunity to make submissions on that question and none were forthcoming. Despite the fact the point was not raised by the defendant in earlier submissions the statute is clear and effect must be given to it. Accordingly, the amount of the proof of debt will be the service charges as claimed with no allowance made for interest.
7 I will hear the parties as to the precise form of orders and as to costs.
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