Leda Holdings Pty Ltd v Naturelink Environment Services Pty Ltd (In Liq) (Receiver Appointed)
[2016] NSWSC 1704
•15 November 2016
Supreme Court
New South Wales
Medium Neutral Citation: Leda Holdings Pty Ltd v Naturelink Environment Services Pty Ltd (In Liq) (Receiver Appointed) [2016] NSWSC 1704 Hearing dates: 15 November 2016 Date of orders: 15 November 2016 Decision date: 15 November 2016 Jurisdiction: Common Law Before: Davies J Decision: Applicant’s application to stay auction refused.
Catchwords: REAL PROPERTY – possession of land – stay of sale of land – registered proprietor of land is company in liquidation – applicant sole director and shareholder of company – applicant provided guarantee for debt secured on land – order for possession made – writ executed – auction of land imminent – applicant seeks stay – debt not paid by guarantor – liquidator not opposing sale – applicant lacks standing – stay refused Legislation Cited: Corporations Act 2001 (Cth) Cases Cited: National Australia Bank Limited v Strik [2009] NSWSC 184 Category: Procedural and other rulings Parties: Leda Holdings Pty Ltd (Plaintiff)
Leda Holdings Pty Ltd v Naturelink Environment Services Pty Ltd (In Liq) (Receiver Appointed) (Defendant)
George Frederic Barnes (Applicant)Representation: Counsel:
Solicitors:
George Frederic Barnes (Applicant – in person) & A Harrison (Amicus Curiae)
Ex parte
Self-represented (Applicant)
File Number(s): 2016/22624
Judgment
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This is an application by one George Frederick Barnes who says that he is the sole director and shareholder of the named defendant which is Naturelink Environment Services Pty Limited In Liquidation. The liquidator was appointed to the company on 1 September 2014. The effect of that is that Mr Barnes, even if in name he remains a director, cannot perform or exercise any function or power of a director: s 471 Corporations Act 2001 (Cth).
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It seems that Naturelink owned a property at 168 Terrace Road, North Richmond. It had a Westpac mortgage that had been on the property for many years. On 27 October 2015 Westpac assigned to the plaintiff, Leda Holdings Pty Limited, Westpac’s rights in relation to Naturelink’s debt, and the payment made to Westpac for that assignment was something a little over $650,000.
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At some time that is not clear, Leda Holdings sought possession of the property. At the time Mr Barnes was still a guarantor of a debt that seems to have come about by his being persuaded into a land deal in relation to land at Ipswich by persons associated with Leda.
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I must say in the time available I have some difficulty understanding quite how it is that Mr Barnes came to give that guarantee and what the debt was in respect of. In any event it appears that what he guaranteed was also secured by the mortgage formerly to Westpac and now, as a result of the assignment, to Leda.
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When the possession proceedings were taken, Mr Barnes sought to be heard in the matter but was refused. That was not entirely surprising because the company was in liquidation and the only person who has a right to appear in those circumstances to resist an order for possession is the liquidator of the company: National Australia Bank Limited v Strik [2009] NSWSC 184 at [9].
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As I now understand it, Mr Barnes would have wanted to claim that he had some interest personally in the land, whether as a result of being the guarantor or otherwise. In any event an order for possession was made. Leave was given to issue a writ and Mr Barnes who resided at the property was put out of possession.
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There is to be an auction tomorrow of the land and it is that auction which Mr Barnes seeks now to enjoin.
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The difficulty that he faces is that the property does not belong to him but belongs to the company. Accordingly, the liquidator is the only person with an interest in preventing that sale.
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Mr Barnes says that he has not acted earlier in this matter because he was not able to obtain important documents concerning Leda and its relationship with another company called Tripod Funds Management. He says, and he relies in this regard on an affidavit of a Detective Senior Constable in the Fraud Squad, that the letter from Leda address to “to whom it may concern” of 16 February 2012 has only been recently authenticated.
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That letter reads:
Leda Finance Pty Limited through an agreement with Tripod Funds Management has agreed to be an underwriting for Tripod in its acquisition of varying mortgage securities.
Tripod of its own volition may issue interim approvals for any proposed assignment or acquisition provided that final approval is subject to the approval of the board of Leda Finance Pty Limited.
I made certain inquiries about the relevance of that letter for the issues that Mr Barnes now seeks to raise but its relevance was not made clear.
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However what is clear is that Mr Barnes has not paid out any guarantee he has given. Until he does that, he does not acquire the rights of the principal debtor who I am assuming to be Naturelink because unless it is Naturelink he would not by the payment out of that guarantee acquire any rights to prevent this auction going ahead.
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He says that he has been trying to pay out the guarantee for some time but has been thwarted in doing so presumably by Leda and those in association with it.
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The position remains, however, that Mr Barnes has no standing now to prevent the sale of land owned by a company which is in liquidation, and in circumstances where he has not paid out the guarantee.
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For those reasons the application must be refused.
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Decision last updated: 06 December 2016
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