KRISHELL PTY LTD -v- NILANT & ORS [2005] WASC 14
| Link to Appeal : |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 14 | |
| Case No: | COR:73/2004 | 18 NOVEMBER 2004 | |
| Coram: | MASTER NEWNES | 22/02/05 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| 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
- Plaintiff
AND
CHARLES PHILIPPE LOUIS NILANT
OREN ZOHAR
First Defendants
CHARLES DANIEL GARDNER
Second Defendant
Catchwords:
Corporations - Liquidation - Application to set aside…
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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.
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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