SUPREME COURT OF QUEENSLAND
CITATION:
Mier & Jonsson v F N Management P/L & Ors [2005] QCA 408
PARTIES:
GERARD JOHN MIER and
ANTHONY JAMES JONSSON
(applicants/respondents)
v
F N MANAGEMENT PTY LTD ACN 094 226 829
(first respondent/first appellant)
WILLIAM ANDERSON NASON and
JANNINE MARGARET NASON
(second respondents/second appellants)FILE NO/S:
Appeal No 3345 of 2005
SC No 637 of 2004DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Cairns
DELIVERED ON:
4 November 2005
DELIVERED AT:
Brisbane
HEARING DATE:
13 October 2005
JUDGES:
McMurdo P, Keane JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDER:
1. Appeal allowed with costs to be assessed on the standard basis
2. The orders made below are set aside
3. Instead it is ordered:
(a) the respondents' application is refused;
(b) it is declared that the appointment of the respondents as liquidators of the managed investment scheme conducted by the first appellant in connection with Cairns Village Resort Community Titles Scheme 18161 does not authorize the respondents to sell or otherwise deal with either the first appellant's leasehold interest or the second appellants' freehold interest in Lot 99 on BUP 100437, County of Nares, Parish of Cairns;
(c) the respondents are to pay the first and second appellants' costs of and incidental to the application, including reserved costs if any, to be assessed on the standard basisCATCHWORDS:
CORPORATIONS - PRACTICE AND PROCEDURE - IN RELATION TO WINDING UP - where the first appellant operated a managed investment scheme that involved the rental of units located on lots within a community titles scheme at a Cairns resort - where the second appellants were the directors of the first appellant - where the owners of the units made them available for rent by the operator of the scheme in return for part of the rental proceeds - where the second appellants were the registered owners of the lot containing, among other things, the resort reception area, restaurant and manager's office - where it was declared by the Supreme Court at Cairns that the managed investment scheme was unregistered and, as a result, was being operated unlawfully in contravention of s 601ED(5) Corporations Act 2001 (Cth) - where an application was brought to have the scheme wound up and to have the respondents appointed as liquidators of the scheme pursuant to s 601EE Corporations Act 2001 (Cth) - where, in a later application for further orders regarding the winding up, the learned primary judge ordered that the respondents were to have the power to sell the lot owned by the second appellants - where s 601EE(2) Corporations Act 2001 (Cth) empowers a court to "make any orders it considers appropriate for the winding up of the scheme" - whether the lot owned by the second appellants could properly be considered to be property of the scheme - whether the sale of the lot owned by the…
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- AGLC
- Mier v FN Management Pty Ltd [2005] QCA 408
- Case
- [2005] QCA 408
- Decision Date
CaseChat Overview and Summary
The Court of Appeal considered the relevant provisions of the Corporations Act, specifically s 601EE, which empowers a court to make any orders it considers appropriate for the winding up of a scheme. The court noted that the scheme operated unlawfully as it was unregistered. The court examined whether the lot could be considered property of the scheme, focusing on whether it was part of the business of the scheme or merely incidental to it. The Court of Appeal distinguished the present case from previous decisions that considered similar issues, concluding that the lot was not part of the scheme's property and its sale was not appropriate for the winding up of the scheme. The Court of Appeal found that the primary judge had erred in authorising the sale of the lot and allowed the appeal.
The Court of Appeal set aside the orders made by the primary judge, ruling that the liquidators were not authorised to sell the lot owned by the second appellants. Instead, the Court of Appeal ordered that the respondents' application be refused, and it was declared that the liquidators' appointment did not permit them to deal with the leasehold interest of FNM or the freehold interest of the second appellants in the lot. The Court of Appeal also ordered the respondents to pay the appellants' costs of the application, including reserved costs if any, to be assessed on the standard basis. The appeal was allowed with costs to be assessed on the standard basis.
Orders
Orders of the court
1. Appeal allowed with costs to be assessed on the standard basis
2. The orders made below are set aside
3. Instead it is ordered:
(a) the respondents' application is refused;
(b) it is declared that the appointment of the respondents as liquidators of the managed investment scheme conducted by the first appellant in connection with Cairns Village Resort Community Titles Scheme 18161 does not authorize the respondents to sell or otherwise deal with either the first appellant's leasehold interest or the second appellants' freehold interest in Lot 99 on BUP 100437, County of Nares, Parish of Cairns;
(c) the respondents are to pay the first and second appellants' costs of and incidental to the application, including reserved costs if any, to be assessed on the standard basis
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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