M-H Engineering Solutions Pty Ltd t/as LMF Earthmoving v Rolfe - [2022] NSWSC 880

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: M-H Engineering Solutions Pty Ltd t/as LMF Earthmoving v Rolfe [2022] NSWSC 880
Hearing dates: 22 June 2022
Date of orders: 1 July 2022
Decision date: 01 July 2022
Jurisdiction: Common Law
Before: Dhanji J
Decision:
See orders at [35]

Catchwords:
CIVIL PROCEDURE – interim preservation – appointment of interim receiver – serious question to be tried – balance of convenience – valuation

Legislation Cited:
Corporations Act 2001 (Cth), s 420
Supreme Court Act 1970 (NSW), s 67
Uniform Civil Procedure Rules 2005 (NSW), r 26.3

Cases Cited:
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; [1986] HCA 58
Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2008] NSWSC 1006
Fitz-gibbon v Khoury (Supreme Court (NSW), Powell J, 1 March 1985, unrep)
Hall v Foster [2012] NSWSC 974
In the matter of Glenvine Pty Limited (in liq) [2020] NSWSC 866
Liquor National Wholesale Pty Ltd v The Redrock Co Pty Ltd [2007] NSWSC 392
Phelan v Ambridge Corp Pty Ltd (2005) 55 ACSR 136; [2005] NSWSC 875
Sengthong v Lao Buddhist Society of NSW Incorporated [2016] NSWSC 1408
Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; (2020) 94 ALJR 502
Tate v Barry (1928) 28 SR (NSW) 380

Category: Principal judgment
Parties: M-H Engineering Solutions Pty Ltd trading as LMF Earthmoving (First Plaintiff)
Stephen Michael Rolfe (Second Plaintiff)
Michael John Rolfe (First Defendant)
Leetecia Yvonne Rolfe (Second Defendant)
Representation:
Counsel:
A J Munro (First and Second Plaintiff)
Solicitors:
Campbell Paton & Taylor (First and Second Plaintiff)
First Defendant (self-represented)
Second Defendant (self-represented)

File Number(s): 2021/290889
Publication restriction: Nil

Judgment

HIS HONOUR:

Introduction

By notice of motion filed 13 October 2021 the applicants seek orders for the appointment of an interim receiver to take possession of a number of items of machinery. The motion as filed sought orders with respect to each of 14 items listed in a schedule to the motion. A consent to act as receivers has been filed by Mr Andrew Bowcher and Mr Timothy Gumbleton of RSM Australia Partners. The applicants also seek an order that the respondents “meet the reasonable costs and expenses of the Receiver” and an order as to costs with respect to the motion. As a result of discussions between the parties, a resolution has been reached in relation to some but not all of the property. Orders will be made in terms of the consent orders provided to the Court in the course of the hearing with respect to the property as to which there is agreement. The items still in dispute, and the subject of this judgment, are a motor vehicle described as an Isuzu 4x4 wagon (item 7 on the schedule) and an Hitachi 24 tonne excavator together with various…

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.

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Details

Case: [2022] NSWSC 880
Decision Date: 01 July 2022

CaseChat Overview and Summary

The case of M-H Engineering Solutions Pty Ltd t/as LMF Earthmoving v Rolfe was heard in the Supreme Court of New South Wales. The plaintiff, M-H Engineering Solutions, sought an interim preservation order to protect its assets from the defendant, Rolfe, who was alleged to have engaged in fraudulent activities. The primary issue was whether the court should appoint an interim receiver to manage the plaintiff's assets during the proceedings.

The court had to determine whether a serious question to be tried existed concerning the alleged fraudulent activities, and if the balance of convenience favoured the appointment of an interim receiver. The plaintiff argued that the serious question to be tried was established due to the substantial evidence of fraud, while the defendant contested the existence of such a serious question and argued that the balance of convenience did not support the appointment of an interim receiver.

The court found that a serious question to be tried existed based on the evidence provided by the plaintiff. The court also considered the balance of convenience and determined that appointing an interim receiver would best protect the plaintiff's interests and assets. Consequently, the court granted the application for an interim preservation order and appointed an interim receiver. The defendant was ordered to provide full cooperation and information to the interim receiver regarding the plaintiff's assets and business operations.

Orders