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Naumoski v Parbery

Naumoski v Parbery

Case [2002] NSWSC 1097 20 November 2002

Corporate Law & Governance

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CITATION: Naumoski v Parbery [2002] NSWSC 1097

CURRENT JURISDICTION: Equity Division
Corporations List

FILE NUMBER(S): SC 1788/02

HEARING DATE(S): 23, 24 October 2002

JUDGMENT DATE: 20 November 2002

PARTIES :

Rade Naumoski (P)
Stephen James Parbery (D1)
The Credit Connection Pty Ltd (In liq) (D2)
NCR Australia Pty Ltd (D3)

JUDGMENT OF: Young CJ in Eq

COUNSEL : D A Smallbone (P)
B A Coles QC and A P Coleman (D1 & 2)
C R C Newlinds and P T Newton (D3)

SOLICITORS: Gordon & Johnstone (P)
Clayton Utz (D1 & 2)
Heidtman & Co (D3)

CATCHWORDS: CONTRACTS [90]- Illegality- By statute- Unlicensed debt collector- Consequences. CORPORATIONS [257]- Liquidator- Commercial decision to settle litigation- Bounds of challenge. DAMAGES [16]- Contract- Plaintiff if it had to sue client would fail for illegality- Whether any damage flows from denial of chance to do the work.

LEGISLATION CITED: Commercial Agents & Private Enquiry Agents Act 1963, ss 6, 26
Corporations Act 2001, ss 477(6), 536, 1321, 1324

CASES CITED: Aliprandi v Griffith Vintners Pty Ltd (1991) 6 ACSR 250
Bayswood Pty Ltd (1981) 6 ACLR 107
Ex parte Sidebotham (1880) 14 Ch D 458
Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215
In re Norske Lloyd Insurance Co Ltd [1928] WN (Eng) 99
Leon v York-O-Matic Ltd [1966] 1 WLR 1450; [1966] 3 All ER 277
Lindsay v Mahoney (1979) 1 BPR 9584
Mahoney v Lindsay (1980) 55 ALJR 118
Manubens v Leon [1919] 1 KB 208
Mendonca v South Sydney Junior Rugby League Club Ltd (NSWCA 11.9.1996)
Nelson v Nelson (1995) 184 CLR 538
Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd (1989) 1 ACSR 79
Re A Debtor [1949] Ch 236
Re Edennote Ltd [1996] 2 BCLC 389
Re Mineral Securities Australia Ltd [1973] 2 NSWLR 207
Re Peters; Ex parte Lloyd (1882) 47 LT 64
Re The Central Darjeeling Tea Co Ltd (1886) 15 LT 234
Sutton v Zullo Enterprises Pty Ltd [2000] 2 Qd R 196
TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130
The Mihalis Angelos [1971] 1 QB 164
UTSA Pty Ltd v Ultra Tune Australia Pty Ltd [1997] 1 VR 667
Vouris v Deputy Commissioner of Taxation (1999) 33 ACSR 527
Yango Pastoral Co v First Chicago Australia Ltd (1978) 139 CLR 410
Yeomans v Walker (1986) 5 NSWLR 378

DECISION: Proceedings dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

YOUNG CJ in EQ

Wednesday 20 November 2002

1788/02 - NAUMOSKI v PARBERY

JUDGMENT

1 HIS HONOUR: By originating process filed 6 March 2002, the plaintiff sought to restrain the liquidator of The Credit Connection Pty Ltd from compromising certain legal proceedings, or in the event that that compromise was valid, to reverse it. The claim was made pursuant to ss 1321, 1324, 536 and 477(6) of the Corporations Act 2001.

2 A direction was made that points of claim and points of defence be filed. The plaintiff…

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 Naumoski v Parbery

Details

AGLC: Naumoski v Parbery [2002] NSWSC 1097
Case: [2002] NSWSC 1097
Decision Date: 20 November 2002

CaseChat Overview and Summary

Naumoski v Parbery involved a dispute between Naumoski, a plaintiff who sought to recover damages for loss of work due to illegality, and Parbery, a defendant who was a liquidator of a company. The plaintiff alleged that his contract with a client would have been enforceable, but for the fact that Parbery, as liquidator, had settled the claim in a manner that made it illegal for the plaintiff to continue working for the client. The Federal Court of Australia was tasked with determining whether the plaintiff could recover damages for the loss of the chance to perform the work.

The primary legal issues before the court were whether the plaintiff could recover damages for the loss of a chance to perform a contract that would have been unenforceable due to illegality, and whether the liquidator's decision to settle the claim was within the bounds of a commercial decision to settle litigation. The court had to consider the statutory consequences of the plaintiff acting as an unlicensed debt collector and the extent to which the liquidator's decision could be challenged.

The court held that the plaintiff could not recover damages for the loss of the chance to perform the work, as there was no damage flowing from the denial of the opportunity to do the work. The court found that the plaintiff's claim was speculative and did not meet the threshold for recoverable damages. Additionally, the court determined that the liquidator's decision to settle the claim was a commercial decision within the bounds of their authority, and therefore not subject to challenge. The court's reasoning was based on the statutory provisions regarding unlicensed debt collection and the principles of commercial decision-making by liquidators.

The final orders of the court were that the plaintiff's claim for damages was dismissed, and the liquidator's decision to settle the claim was upheld. The court found in favour of the defendant, Parbery, and against the plaintiff, Naumoski.

Orders