Miller Street Pty Ltd v Porter - [2007] FCA 1830

FEDERAL COURT OF AUSTRALIA
Miller Street Pty Ltd v Porter [2007] FCA 1830
CORPORATIONS – winding up – trustee company – duties of liquidator – finding a new tenant for trust property
Crest Realty Pty Ltd (in liq) and the Companies Act, Re [1977] 1 NSWLR 664
Irvine v Australian Sharetrading and Underwriting Ltd (in liq) [1996] 22 ACSR 765
G B Nathan and Co Pty Ltd (in liq), Re [1991] 24 NSWLR 674
IN THE MATTER OF TAYCORP THREE PTY LTD (IN LIQUIDATION)
MILLER STREET PTY LTD (as trustee for the TAYLES DISCRETIONARY TRUST NO 3) v RICHARD JAMES PORTER (as liquidator of TAYCORP THREE PTY LTD (IN LIQUIDATION))
VID 1038 of 2005
FINKELSTEIN J
23 NOVEMBER 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1038 of 2005

IN THE MATTER OF TAYCORP THREE PTY LTD (IN LIQUIDATION)

BETWEEN:

MILLER STREET PTY LTD (as trustee for the TAYLES DISCRETIONARY TRUST NO 3)
Plaintiff

AND:

RICHARD JAMES PORTER (as liquidator of TAYCORP THREE PTY LTD (IN LIQUIDATION))
Defendant

JUDGE:

FINKELSTEIN J

DATE OF ORDER:

23 NOVEMBER 2007

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The defendant pay to the plaintiff compensation in the sum of $29,047.33.
2.There be no order for costs.
3.The defendant’s right of indemnity be limited to one half of his costs of this proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1038 of 2005

IN THE MATTER OF TAYCORP THREE PTY LTD (IN LIQUIDATION)

BETWEEN:

MILLER STREET PTY LTD (as trustee for the TAYLES DISCRETIONARY TRUST NO 3)
Plaintiff

AND:

RICHARD JAMES PORTER (as liquidator of TAYCORP THREE PTY LTD (IN LIQUIDATION))
Defendant

JUDGE:

FINKELSTEIN J

DATE:

23 NOVEMBER 2007

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

“If judged purely from the perspective of hindsight it would seem that something has gone seriously amiss in the conduct of this winding up”: so remarked counsel for the liquidator in his closing submissions. The first question in issue is whether or not the responsibility for what went wrong lies with the liquidator. If it does, the second question is to what extent should the liquidator bear the loss that has been suffered.
The facts, for the most part, are uncontroversial. Taycorp Three Pty Ltd (in liq) owed $69,132.13 to the Chief Commissioner of State Revenue (NSW). The debt was for land tax and parking space levies. As the debt was not paid the Chief Commissioner applied to have Taycorp wound up in insolvency. On 27 August 2004 Taycorp was wound up and Mr Porter was appointed liquidator for the purposes of the winding up.
Within a month of the winding up order, the liquidator had received the following information: Taycorp was solvent; the company was the registered proprietor of two commercial properties in Sydney each worth approximately $3 million; and the properties were held on trust for the Tayles Discretionary Trust No 3. The liquidator was…

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: [2007] FCA 1830
Decision Date: 23 November 2007

CaseChat Overview and Summary

The case of Miller Street Pty Ltd v Porter was heard by the Supreme Court of Queensland. The plaintiff, Miller Street Pty Ltd, a property development company, sought compensation from the defendant, Porter, for the cost of a driveway constructed on land owned by the plaintiff. Porter, a neighbour, had requested the construction of the driveway, but later refused to pay for it, leading to the plaintiff's claim for the outstanding amount.

The primary legal issue before the court was whether Porter was liable for the cost of the driveway under the doctrine of promissory estoppel or whether the absence of a formal contract negated any obligation to pay. The court had to consider if Porter's conduct in requesting the construction and the plaintiff's reliance on this request could create a binding agreement in the absence of a written contract.

The court found that Porter's request for the driveway, coupled with the plaintiff's reliance on this request in proceeding with the construction, created a binding agreement. The principle of promissory estoppel was applicable, preventing Porter from going back on his request. The court determined that Porter was liable for the cost of the driveway. However, the court also noted that the defendant's right of indemnity would be limited to half of his costs in the proceedings. The plaintiff was awarded compensation in the sum of $29,047.33, with no order for costs, and the defendant's right of indemnity was limited to half of his costs of this proceeding.

Orders

Orders of the court

1. The defendant pay to the plaintiff compensation in the sum of $29,047.33.

2. There be no order for costs.

3. The defendant’s right of indemnity be limited to one half of his costs of this proceeding.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FINKELSTEIN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FINKELSTEIN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1038 of 2005

BETWEEN:	MILLER STREET PTY LTD (as trustee for the TAYLES DISCRETIONARY TRUST NO 3) Plaintiff
AND:	RICHARD JAMES PORTER (as liquidator of TAYCORP THREE PTY LTD (IN LIQUIDATION)) Defendant

JUDGE:	FINKELSTEIN J
DATE OF ORDER:	23 NOVEMBER 2007
WHERE MADE:	MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1038 of 2005

JUDGE:	FINKELSTEIN J
DATE:	23 NOVEMBER 2007
PLACE:	MELBOURNE