MOLONEY -v- PIACHNIARSKI & ORS [2004] WASC 240

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 240
Case No:	CIV:1885/2003	Heard:	12 MAY 2004
Coram:	LE MIERE J	Delivered:	19/11/04
No of pages:	22	Judgment Part:	1 of 1
Result:	Receiver and manager appointed
Category:	A
PDF Version

Parties:	PATRICK MOLONEY MARCEL PIACHNIARSKI GEORGE STEPHEN OKELL COLM O'DONOGHUE
Catchwords:	Application to appoint receiver and manager Jurisdiction for appointment of receivers Supreme Court Act 1935 (WA), s 25(9) Where just or convenient Inherent power Grounds for appointment Dissolution of partnership Breakdown in relations between parties "As a matter of course" Sufficient grounds must be shown Discretionary remedy Circumstances warrant appointment of receiver Receiver and manager Function of receiver and manager Powers of receiver and manager Identity of receiver Remuneration of receiver Receiver and manager appointed
Legislation:	Corporations Act 2001 (WA), s 420(1) Supreme Court Act 1935 (WA), s 25(9)
Case References:	Corporate Affairs Commission v Smithson [1984] 3 NSWLR 547 D'Souza v Aaronisle Pty Ltd [2003] WASC 111 Groves v Groves [2004] WASC 79 Rowlands v Macdonald [2002] NSWSC 282 Wedge v Wedge (1994) 12 WAR 489 Boehm v Goodall [1911] 1 CH 155 Carter v Fey [1894] 2 Ch 541 Gray v Chaplin (1826) 2 Russ 126; 38 ER 283 Marshall v Charteris [1920] 1 CH 520 McLean v McKinlay [2004] WASC 2 Church Press Ltd; Victoria House Printing Co Ltd v Church Press Ltd (1917) 116 LT 247

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MOLONEY -v- PIACHNIARSKI & ORS [2004] WASC 240 CORAM : LE MIERE J HEARD : 12 MAY 2004 DELIVERED : 19 NOVEMBER 2004 FILE NO/S : CIV 1885 of 2003 BETWEEN : PATRICK MOLONEY

Plaintiff

AND

MARCEL PIACHNIARSKI

First Defendant

GEORGE STEPHEN OKELL

Second Defendant

COLM O'DONOGHUE

Third Defendant

Catchwords:

Application to appoint receiver and manager - Jurisdiction for appointment of receivers - Supreme Court Act 1935 (WA), s 25(9) - Where just or convenient - Inherent power - Grounds for appointment - Dissolution of partnership - Breakdown in relations between parties - "As a matter of course" - Sufficient grounds must be shown - Discretionary remedy - Circumstances warrant appointment of receiver - Receiver and manager - Function of receiver and manager - Powers of receiver and manager - Identity of receiver - Remuneration of receiver - Receiver and manager appointed

(Page 2)

Legislation:

Corporations Act 2001 (WA), s 420(1)

Supreme Court Act 1935 (WA), s 25(9)

Result:

Receiver and manager appointed

Category: A

Representation:

Counsel:

Plaintiff : Mr A Atkinson

First Defendant : No appearance

Second Defendant : Ms P E Cahill

Third Defendant : Ms P E Cahill

Solicitors:

Plaintiff : Solomon Brothers

First Defendant : No appearance

Second Defendant : Jackson McDonald

Third Defendant : Jackson McDonald

Case(s) referred to in judgment(s):

Corporate Affairs Commission v Smithson [1984] 3 NSWLR 547
D'Souza v Aaronisle Pty Ltd [2003] WASC 111
Groves v Groves [2004] WASC 79
Rowlands v Macdonald [2002] NSWSC 282
Wedge v Wedge…

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: [2004] WASC 240
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of Moloney v Piachniarski [2004] WASC 240 involved a dispute over the dissolution of a partnership and the subsequent appointment of a receiver and manager. The partnership, which operated under various names in New South Wales, Western Australia, and Victoria, dissolved on April 10, 2003. The plaintiff, Patrick Moloney, claimed a two-fifths interest in the partnership, while each of the defendants, Marcel Piachniarski, George Okell, and Colm O'Donoghue, claimed a one-fifth interest. The defendants sought the appointment of a receiver and manager to wind up the partnership's affairs, a request the plaintiff opposed.

The court addressed several legal issues, including the jurisdiction to appoint a receiver under the Supreme Court Act 1935 (WA), s 25(9), and the inherent power of the court to make such an appointment. The court considered whether sufficient grounds existed for the appointment, given the dissolution of the partnership and the breakdown in relations between the parties. The court also examined the function and powers of a receiver and manager, the identity of the receiver, and the remuneration of the receiver.

The court concluded that the appointment of a receiver and manager was warranted due to the serious dispute between the parties and the need to address the trailing commissions and agreements with lending institutions. The court decided to confer on the receiver and manager specific powers, including the ability to collect books of account, records, and financial statements, and to dispose of partnership assets. The court declined to grant the receiver powers to investigate the conduct of the partnership affairs, as that was not within the scope of a receiver's duties. The court also rejected the proposal that the plaintiff indemnify the receiver for his remuneration and liabilities, stating that such costs should be borne by the partnership's property.

Ultimately, the court ordered the appointment of a receiver and manager, giving the parties an opportunity to confer and, if necessary, lead further evidence and make submissions concerning the identity of the receiver, the remuneration of the receiver, security to be given by the receiver, and any other necessary or incidental orders.

Orders