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:
Solicitors:
A J Munro (First and Second Plaintiff)
Campbell Paton & Taylor (First and Second Plaintiff)
First Defendant (self-represented)
Second Defendant (self-represented)
File Number(s): 2021/290889 Publication restriction: Nil
Judgment
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HIS HONOUR:
Introduction
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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…
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- Case
- [2022] NSWSC 880
- Decision Date
CaseChat Overview and Summary
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
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
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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