Matheson v Meehan
[2014] QCAT 321
| CITATION: | Matheson & Anor v Meehan & Anor [2014] QCAT 321 |
| PARTIES: | Troy Matheson Leah Matheson (Applicants) |
| v | |
| Brian Meehan Tugun Enterprises Pty Ltd (Externally Administered) (Respondents) |
| APPLICATION NUMBER: | GAR078-14 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Paratz |
| DELIVERED ON: | 2 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Directions 2, 3, 4 and 5 of the Directions made on 28 March 2014 are vacated. 2. Brian Meehan and Tugun Enterprises Pty Ltd (Externally Administered) must file in the Tribunal and give one (1) copy to Troy Matheson and Leah Matheson of all material including any statements of evidence is response by 4:00pm on 15 August 2014. 3. Troy Matheson and Leah Matheson must file in the Tribunal and give one (1) copy to Brian Meehan and Tugun Enterprises Pty Ltd (Externally Administered) of any reply to the response, by 4:00pm on 12 September 2014. 4. If any party wants an oral hearing, they must file in the Tribunal and give to each other party their written request for an oral hearing by 4pm on 15 August 2014. 5. If there is no application for an oral hearing, or the application is made and refused, the application will be determined on the papers not before 4:00pm on 12 September 2014. |
| CATCHWORDS: | Where a claim against the Claim Fund was referred to the Tribunal for determination pursuant to the Property Agents and Motor Dealers Act 2000 – where a liquidator had been appointed to the respondent company – whether leave of the court pursuant to s 500(2) of the Corporations Law was required – where it was held there was no proceeding in a court against the company – where it was held that no leave to proceed under the Corporations Law was required Corporations Act 2001 (Cth), s 471B, s 500(2) Thomson v Auto Group Cleveland Pty Ltd t/a Bayside Honda and Kia (in Liquidation) and others [2009] QCCTPAMD 12 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This matter is a referral for determination of a claim against the Claim Fund pursuant to the Property Agents and Motor Dealers Act 2000 (Qld).
On 28 March 2014, I gave Directions as to filing of material in the Application and as to the conduct of the proceedings.
A letter dated 16 April 2014 from Bruce Mulvaney & Co of Surrey Hills in Victoria, Business Advice & Insolvency, was received by the Tribunal on 24 April 2014. Mr Mulvaney advised that he was appointed replacement liquidator of Tugun Enterprises Pty Ltd on 2 May 2013 pursuant to an Order of the Federal Court of Victoria dated 12 April 2013 subject to his filing a Consent to Act as Liquidator which was filed on 2 May 2013.
I will treat the letter from Mr Mulvaney as a submission on behalf of the company.
Mr Mulvaney referred in his letter to s 500(2) of the Corporations Act 2001 (Cth) which provides:
After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.
He then went on to query:
As far as I am aware no such leave has been granted. Therefore please confirm that your notification to Tugun Enterprises is only for the purposes of keeping me informed.
The principles as to proceeding in a claim of this nature is well settled. No such leave is required.
In Thomson v Auto Group Cleveland Pty Ltd t/a Bayside Honda and Kia (in Liquidation) and Others[1] Justice J Thomas AM QC considered a similar provision, s 471B of the Corporations Act.
[1][2009] QCCTPAMD 12.
Section 471B provides that:
While a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with:
(a)a proceeding in a court against the company or in relation to property of the company
…except with the leave of the Court and in accordance with such terms (if any) as the Court imposes
In his decision, Justice Thomas held that the former Tribunal could be regarded as a “court” in proceedings of this type.[2]
[2]Ibid [26].
He then considered whether such a referral was a ‘proceeding in a court against the company’. He noted that it is not a claim against the respondent, it is a claim against the fund.[3] He concluded that there is no monetary claim against any respondent.[4]
[3]Ibid [28].
[4]Ibid [30].
His Honour found:
In summary, the essential character of such a claim in this Tribunal is a proceeding against the fund. There is no actual proceeding here against the respondent company of the kind that falls within section 471B of the Corporations Law unless and until a separate proceeding is brought by the Chief Executive (if the Chief Executive elects to do so).[5]
[5]Ibid [31].
He went on to say:
I therefore consider that unless and until an action is brought by the Chief Executive against a respondent company there is no ‘proceeding in a court against a company” within the meaning of section 471B of the Corporations Law.[6]
[6]Ibid [32].
He concluded:
I therefore hold that leave to proceed under section 471B of the Corporations Law is not necessary in claims against the fund under PAMDA.[7]
[7]Ibid [37].
Section 500(2) of the Corporations Law is phrased in effectively identical wording and refers to ‘proceeding … against the company’. The same conclusions will apply.
I therefore consider that no leave of the Court is required to proceed in this Application.
The liquidator, now that he is appraised of the proceeding, should have time to make any submissions in relation to the Application, and I will amend the previous Directions by extending the times provided in the previous Direction of 28 March 2014.
I direct that:
1. Directions 2, 3, 4 and 5 of the Directions made on 28 March 2014 are vacated.
2. Brian Meehan and Tugun Enterprises Pty Ltd (Externally Administered) must file in the Tribunal and give one (1) copy to Troy Matheson and Leah Matheson of all material including any statements of evidence in response by: 4:00pm on 15 August 2014.
3. Troy Matheson and Leah Matheson must file in the Tribunal and give one (1) copy to Brian Meehan and Tugun Enterprises Pty Ltd (Externally Administered) of any reply to the response, by: 4:00pm on 12 September 2014.
4. If any party wants an oral hearing, they must file in the Tribunal and give to each other party their written request for an oral hearing by: 4pm on 15 August 2014.
5. If there is no application for an oral hearing, or the application is made and refused, the application will be determined on the papers not before: 4:00pm on 12 September 2014.
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