Martyniuk v King - [2002] VSC 388

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7115 of 1999

VLADIMIR MARTYNIUK	Plaintiff
v
CECIL KING and ORS	Defendants

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JUDGE:	DODDS-STREETON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 September 2002
DATE OF JUDGMENT:	9 September 2002
CASE MAY BE CITED AS:	Martyniuk v King and Ors
MEDIUM NEUTRAL CITATION:	[2002] VSC 388

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CORPORATIONS LAW - Receiver appointed until trial of proceeding or further order – Whether receiver justified in seeking directions as to passing of final account upon discharge – Entitlement to seek release from particular liabilities upon discharge – Investigation of claims where release is sought - Corporations Act s.432 - Supreme Court Rules – Order 39.07.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Bevan-John	Peter Lustig
For the Defendant	Mr A. Schlicht	Corrs Chambers Westgarth

TABLE OF CONTENTS

Outstanding Issues............................................................................................................................ 2

Background......................................................................................................................................... 2

Relevant Legislation, Rules and Legal Principles....................................................................... 4

Conclusion........................................................................................................................................... 6

HER HONOUR:

Outstanding Issues

In this matter the principal issues in dispute have been resolved by the agreement of the parties. The plaintiff and the third defendant each seek an order terminating the receivership of the receiver, Mr Dean McVeigh, over the assets and undertaking of the Watts Castlecrown Unit Trust of which the third defendant was, and is (unless removed in consequence of the appointment of the receiver by the order of Warren J on 14 August 2000) the corporate trustee. The first defendant and the second defendant did not appear at the hearing before me.

Before me, Mr Bevan‑John, who appeared for the third defendant, also represented the receiver. Application for the discharge of a receiver should normally be made not by the receiver but by a party to the proceeding. Although the receiver should have notice of an application for discharge, he or she should usually not appear.[1]
[1]Picarda, H. The Law Relating to Receivers & Managers and Administrators, Butterworths, 2000 pp. 504-505; O’Donovan, J., Company Receivers and Administrators, Looseleaf service, paras 30-100.

There are now two outstanding issues between the plaintiff and the third defendant. The plaintiff seeks:

(a)an order that the third defendant pay the plaintiff’s costs of the hearing on 22 March 2002
(b)an order that there be provision for the plaintiff to apply should it decide to do so, for an assessment of damages should the court hereafter be of the opinion that the plaintiff has sustained any by reason of the adjournment ordered on 22 March 2002 which the receiver ought to pay.

Background

The present proceeding was commenced by writ filed on 6 October 1999.

The plaintiff is and was a unit holder in the Watts Castlecrown Unit Trust (“the Unit Trust”) of which the third defendant, Illawong Retirement Equity Pty Ltd, was the corporate trustee. The first and second defendants were the other unit holders of the Unit Trust. In essence, the plaintiff alleged, inter alia, breach of an agreement to transfer to him certain units in the Unit Trust, breach…

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 Martyniuk v King

Details

AGLC: Martyniuk v King [2002] VSC 388
Case: [2002] VSC 388
Decision Date: 9 September 2002

CaseChat Overview and Summary

Martyniuk v King is a case in which the court was required to determine whether a receiver appointed under the Corporations Act was justified in seeking directions concerning the passing of the final account upon discharge. Additionally, the court had to decide whether the receiver was entitled to seek release from specific liabilities upon discharge and whether an investigation of claims should be conducted where such release is sought. The case was heard in the Supreme Court of Victoria.

The primary legal issues in this case revolved around the powers and responsibilities of a receiver appointed under the Corporations Act. Specifically, the court needed to determine if the receiver was justified in seeking directions from the court regarding the passing of the final account upon discharge. Furthermore, the court had to decide whether the receiver was entitled to seek release from particular liabilities upon discharge and whether an investigation of claims should be conducted if such release was sought. These issues were addressed in light of the relevant provisions of the Corporations Act and the Supreme Court Rules.

In delivering the judgment, the court examined the statutory framework provided by the Corporations Act and the Supreme Court Rules. The court found that the receiver, upon discharge, was indeed justified in seeking directions from the court concerning the passing of the final account. The court further determined that the receiver was entitled to seek release from certain liabilities upon discharge, provided that an investigation of the claims for release was conducted. This investigation was deemed necessary to ensure that the receiver's actions were in accordance with the law and to protect the interests of all parties involved.

The court ordered that the receiver should be permitted to seek directions from the court regarding the passing of the final account upon discharge. Additionally, the court ruled that the receiver could seek release from particular liabilities upon discharge, subject to the condition that an investigation of the claims for release be conducted. This investigation was to be overseen by the court to ensure fairness and compliance with legal requirements.

Orders