Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 14
Case No:	COR:73/2004	Heard:	18 NOVEMBER 2004
Coram:	MASTER NEWNES	Delivered:	22/02/05
No of pages:	18	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	KRISHELL PTY LTD CHARLES PHILIPPE LOUIS NILANT OREN ZOHAR CHARLES DANIEL GARDNER
Catchwords:	Corporations Liquidation Application to set aside Decision of liquidator Extension of time for application Relevant principles Assignment by liquidator of judgment debt and right of appeal against adverse judgment which set-off against judgment debt Whether right of appeal is property of company Whether assignment should be set aside Turns on own facts
Legislation:	Corporations Act 2001 (Cth), s 9, s 477(2), s 533C, s 1321 Property Law Act 1969 (WA), s 20(1)(b) Rules of the Supreme Court 1971 (WA), O 81G r 81
Case References:	Burnells Pty Ltd (In liq) v Walsh [1979] Qd R 440 CLC Corporation v Read (1999) 17 ACLC 800 Cummings v Claremont Petroleum NL (1996) 185 CLR 124 Derwinto Pty Ltd (In liq) v Lewis [2002] NSWSC 731 Esber v Commonwealth (1992) 174 CLR 430 Gardner Corporation Pty Ltd v Zed Bears Pty Ltd [2003] WASC 13 Gardner Corporation Pty Ltd v Zed Bears Pty Ltd, unreported; SCt of WA; Library No 990181; 13 April 1999 Investors Compensation Scheme Ltd v West Bromwich Building Society (1998) 1 All ER 98 Leon v York -O-Matic Ltd [1966] 1 WLR 1450 Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd (1989) 19 NSWLR 434 Re Equity Funds of Australia (In liq) (1976) 2 ACLR 238 Re Minerals Securities Australia (In Liq) and the Companies Act [1973] 2 NSWLR 207 Re Movitor Pty Ltd (In liq) v Sims (1996) 14 ACLC 587 Re Teller Home Furnishers Pty Ltd (In liq) Electronic Industries v Horsburgh [1967] VR 313 Rocom International Pty Ltd v Prentice [2002] FCA 604 Torkington v Magee [1902] 2 KB 427 UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd (1996) 14 ACLC 1262 Westpac Banking Corporation v Totterdell (1998) 20 WAR 150 Carob Industries Pty Ltd (in liq) t/as Foremost Equipment v Simto Pty Ltd (2000) 18 ACLC 177 Carob Industries Pty Ltd (in liq) v Simto Pty Ltd (2000) 23 WAR 515 Citicorp Australia Ltd v Official Trustee in Bankruptcy (1996) 71 FCR 550 Clements v Simto Pty Ltd [2001] WASCA 183 UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd [1997] 1 VR 667

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : KRISHELL PTY LTD -v- NILANT & ORS [2005] WASC 14 CORAM : MASTER NEWNES HEARD : 18 NOVEMBER 2004 DELIVERED : 22 FEBRUARY 2005 FILE NO/S : COR 73 of 2004 BETWEEN : KRISHELL PTY LTD

Plaintiff

AND

CHARLES PHILIPPE LOUIS NILANT

OREN ZOHAR

First Defendants

CHARLES DANIEL GARDNER

Second Defendant

Catchwords:

Corporations - Liquidation - Application to set aside…

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 Krishell Pty Ltd v Nilant

Details

AGLC: Krishell Pty Ltd v Nilant [2005] WASC 14
Case: [2005] WASC 14
Decision Date

CaseChat Overview and Summary

The plaintiff, Krishell Pty Ltd, brought an application against the liquidators of Gardner Corporation Pty Ltd, Charles Philippe Louis Nilant and Oren Zohar, and Charles Daniel Gardner, the former managing director of Gardner Corporation, under s 1321 of the Corporations Act 2001 (Cth), seeking orders to set aside the liquidators' sale of the company's appeal rights to Mr Gardner. The application was made outside the 21-day period for such applications, and Krishell also sought an extension of time to file the application. The legal issues involved determining whether the liquidators had the power to assign the appeal rights, whether the assignment was in the best interests of the company, and whether the delay in bringing the application was justified.

The court found that the liquidators had the power to assign the appeal rights, including the judgment debt, as it was in the best interests of the company to realise any value from the appeal rights. The court also found that the delay in bringing the application was not justified, and the application was dismissed. The court refused to extend the time for the application, noting that Krishell had been aware of the transaction since November 2003 and had taken no steps to challenge it until March 2004. The court held that it was too late to set aside the transaction and that the liquidators had acted reasonably in concluding that it was not worthwhile to pursue the appeal in an endeavour to obtain the value of the judgment debt.

Orders