Lidgett v Lidgett - [2023] VSC 743

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2023 01185

BETWEEN:

SIMON JOHN LIDGETT	Plaintiff
v
JILLIAN ROSEMARY LIDGETT & ANOR (according to the attached Schedule)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 and 29 November 2023
DATE OF JUDGMENT:	12 December 2023
CASE MAY BE CITED AS:	Lidgett v Lidgett
MEDIUM NEUTRAL CITATION:	[2023] VSC 743

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PRACTICE AND PROCEDURE — Receivers and managers — Application for appointment of a receiver and manager of assets of a farming business operated by a partnership between the plaintiff and the first defendant pursuant to s 37(1) of the Supreme Court Act 1986 (Vic) and rule 39.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Choy v St Kilda Baths Pty Ltd [1999] VSCA 212 and Martyniuk v King [2000] VSC 319 referred to — Whether circumstances justify the appointment of a receiver — Farm business assets are not at risk of dissipation or waste such as to necessitate the appointment of a receiver — Appointment of receiver is inappropriate and unnecessary — Receiver not capable of resolving underlying factual disputes between the partners — Application refused.

PRACTICE AND PROCEDURE — Interlocutory injunction — Application for injunctive relief to prevent the sale of farm business assets of a partnership — Yimiao Australia v Cyber Intelligence [2023] VSCA 21 referred to — Whether a grant of the injunction would authorise an unlawful act — Partnership Act 1958 (Vic), ss 42-3, 46 — Balance of convenience favours the granting of an interlocutory injunction restraining the first defendant from selling or disposing of any assets of the partnership — Application granted, subject to conditions.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D B Clough of counsel	Cinque Oakley Bryant Lawyers
For the First Defendant	Mr R E T Wodak of counsel	Heinz Law

TABLE OF CONTENTS

Introduction................................................................................................................................... 1
Factual background and the parties’ claims in this proceeding............................................ 2
The current applications............................................................................................................ 16
The evidence................................................................................................................................ 21
Relevant legal principles............................................................................................................ 54
Applications to appoint receivers................................................................................... 54
Injunction applications..................................................................................................... 56

The parties’ submissions............................................................................................................ 60
Discussion.................................................................................................................................... 82
Proposed orders.......................................................................................................................... 99

HER HONOUR:

Introduction

These reasons concern two applications made by the parties in a proceeding with respect to a bitter dispute within a fifth generation Victorian farming family. In the first application, the first defendant, Mrs Jill Lidgett,[1] applies for the appointment of SMB Advisory as the receiver and manager of the assets and undertaking of the SJ Lidgett & JR Lidgett Partnership (‘partnership’), a farming business operated by Jill and the plaintiff, her son Simon. The farming business operates from the property which is the subject of Simon’s primary claim in this proceeding (‘Highton farm’).
[1]For ease of reading, and to distinguish between family members, first names are used for the parties in these reasons. No disrespect is intended.

Simon opposes Jill’s application, and has applied in turn for interlocutory relief, including, among other things, an…

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 Lidgett v Lidgett

Details

AGLC: Lidgett v Lidgett [2023] VSC 743
Case: [2023] VSC 743
Decision Date: 12 December 2023

CaseChat Overview and Summary

The case of Lidgett v Lidgett involved the plaintiff seeking the appointment of a receiver and manager over the assets of a farming business operated by a partnership between the plaintiff and the first defendant. The application was made under section 37(1) of the Supreme Court Act 1986 (Vic) and rule 39.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). Additionally, the plaintiff sought an interlocutory injunction to prevent the first defendant from selling or disposing of any assets of the partnership. The Supreme Court of Victoria was tasked with determining whether the appointment of a receiver and manager was appropriate and whether an interlocutory injunction should be granted.

The central legal issues before the court were whether the circumstances warranted the appointment of a receiver and manager over the partnership's assets and whether an interlocutory injunction should be granted to prevent the sale of the assets. The court considered the risk of dissipation or waste of the partnership assets, the potential for a receiver to resolve underlying disputes between the partners, and the balance of convenience in granting the interlocutory injunction. The court also evaluated the authority of the plaintiff to apply for the relief and whether such relief would authorise an unlawful act.

In its judgment, the court found that the assets of the farming business were not at risk of dissipation or waste to the extent that necessitated the appointment of a receiver. The court held that a receiver would not be capable of resolving the underlying factual disputes between the partners. Consequently, the application for the appointment of a receiver and manager was refused. Regarding the interlocutory injunction, the court concluded that the balance of convenience favoured granting the injunction to prevent the sale or disposition of partnership assets, subject to certain conditions. The court found that the grant of the injunction would not authorise an unlawful act and was in the best interests of preserving the status quo pending the resolution of the substantive issues between the parties.

The final orders of the court were that the application for the appointment of a receiver and manager was dismissed, and the application for an interlocutory injunction was granted, subject to specified conditions.

Orders