Osric Investments Pty Limited v Clout (Liquidator)

Case [2001] FCA 1545

FEDERAL COURT OF AUSTRALIA

Osric Investments Pty Limited v Clout (Liquidator) [2001] FCA 1545

OSRIC INVESTMENTS PTY LIMITED (ACN 010 175 050) v DAVID LEWIS CLOUT AS LIQUIDATOR OF WOBURN DOWNS PASTORAL PTY LTD (ACN 060 597 015), DAVID LEWIS CLOUT AS LIQUIDATOR OF WOBURN DOWNS MANAGEMENT PTY LTD (ACN 010 997 298), DAVID LEWIS CLOUT AS LIQUIDATOR OF HEATH CREDITS PTY LTD (ACN 010 997 289), ERNEST LESLIE SUARES, HEATHER RUSSELL SUARES, BENTONY PTY LTD (ACN 009 913 517) AND BRYAN WALTER LOUKS
QG 75 OF 1996

DRUMMOND J
10 OCTOBER 2001
BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 75 OF 1996

BETWEEN:

OSRIC INVESTMENTS PTY LIMITED (ACN 010 175 050)
APPLICANT

AND:

DAVID LEWIS CLOUT AS LIQUIDATOR OF WOBURN DOWNS PASTORAL PTY LTD (ACN 060 597 015)
FIRST RESPONDENT

DAVID LEWIS CLOUT AS LIQUIDATOR OF WOBURN DOWNS MANAGEMENT PTY LTD (ACN 010 997 298)
SECOND RESPONDENT

DAVID LEWIS CLOUT AS LIQUIDATOR OF HEATH CREDITS PTY LTD (ACN 010 997 289)
THIRD RESPONDENT

ERNEST LESLIE SUARES
FOURTH RESPONDENT

HEATHER RUSSELL SUARES
FIFTH RESPONDENT

BENTONY PTY LTD (ACN 009 913 517)
SIXTH RESPONDENT

BRYAN WALTER LOUKS
SEVENTH RESPONDENT

BENTONY PTY LTD (ACN 009 913 517)
CROSS-CLAIMANT

DAVID LEWIS CLOUT AS LIQUIDATOR OF WOBURN DOWNS PASTORAL PTY LTD (ACN 060 597 015)
FIRST CROSS-CLAIMANT

DAVID LEWIS CLOUT AS LIQUIDATOR OF WOBURN DOWNS MANAGEMENT PTY LTD (ACN 010 997 298)
SECOND CROSS-CLAIMANT

DAVID LEWIS CLOUT AS LIQUIDATOR OF HEATH CREDITS PTY LTD (ACN 010 997 289)
THIRD CROSS-CLAIMANT

ERNEST LESLIE SUARES
FOURTH CROSS-CLAIMANT

HEATHER RUSSELL SUARES
FIFTH CROSS-CLAIMANT

JUDGE:

DRUMMOND J

DATE OF ORDER:

10 OCTOBER 2001

WHERE MADE:

BRISBANE

THE COURT DECLARES THAT:

1.The Third Respondent has never advanced any money on behalf of the Applicant.

2.The Applicant is not indebted to the Third Respondent in any amount.

THE COURT ORDERS THAT:

3.The Applicant have judgment against each of the First, Second, Third, Fourth, Fifth, Sixth and Seventh Respondents in the sum of $131,847.00 together with interest thereon at the rate of 10% per annum (such interest calculated in the sum of $94,580.40).

4.The Third Respondent’s Cross-Claim against the Applicant is dismissed with costs.

5.Each of the First, Second, Third, Fourth, Fifth, Sixth and Seventh Respondents pay the Applicant’s costs of and incidental to the proceedings to be taxed or agreed.

6.The First, Second, Third, Fourth and Fifth Respondents’ Cross-Claim against the Sixth and Seventh Respondents is dismissed with costs.

7.The Sixth and Seventh Respondents’ Cross-Claim against the First, Second, Third, Fourth and Fifth Respondents is dismissed with costs.

8.Leave is granted to the Applicant to apply on two days notice for an order for costs against the Liquidator of the First, Second, and Third Respondents (DAVID LEWIS CLOUT) in the event of the failure by the First, Second and Third Respondents to pay those costs within one month of demand.

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


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 75 OF 1996

BETWEEN:

OSRIC INVESTMENTS PTY LIMITED (ACN 010 175 050)
APPLICANT

AND:

DAVID LEWIS CLOUT AS LIQUIDATOR OF WOBURN DOWNS PASTORAL PTY LTD (ACN 060 597 015)
FIRST RESPONDENT

DAVID LEWIS CLOUT AS LIQUIDATOR OF WOBURN DOWNS MANAGEMENT PTY LTD (ACN 010 997 298)
SECOND RESPONDENT

DAVID LEWIS CLOUT AS LIQUIDATOR OF HEATH CREDITS PTY LTD (ACN 010 997 289)
THIRD RESPONDENT

ERNEST LESLIE SUARES
FOURTH RESPONDENT

HEATHER RUSSELL SUARES
FIFTH RESPONDENT

BENTONY PTY LTD (ACN 009 913 517)
SIXTH RESPONDENT

BRYAN WALTER LOUKS
SEVENTH RESPONDENT

BENTONY PTY LTD (ACN 009 913 517)
CROSS-CLAIMANT

DAVID LEWIS CLOUT AS LIQUIDATOR OF WOBURN DOWNS PASTORAL PTY LTD (ACN 060 597 015)
FIRST CROSS-CLAIMANT

DAVID LEWIS CLOUT AS LIQUIDATOR OF WOBURN DOWNS MANAGEMENT PTY LTD (ACN 010 997 298)
SECOND CROSS-CLAIMANT

DAVID LEWIS CLOUT AS LIQUIDATOR OF HEATH CREDITS PTY LTD (ACN 010 997 289)
THIRD CROSS-CLAIMANT

ERNEST LESLIE SUARES
FOURTH CROSS-CLAIMANT

HEATHER RUSSELL SUARES
FIFTH CROSS-CLAIMANT

JUDGE:

DRUMMOND J

DATE:

10 OCTOBER 2001

PLACE:

BRISBANE

REASONS FOR JUDGMENT

  1. After publication of the Reasons, the Court was informed that the first, second and third respondents were in voluntary liquidation.  Accordingly, final orders in the terms set out above were made.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated:             10 October 2001

Counsel for the applicant:

Mr DR Cooper SC

Solicitor for the applicant:

Lees Marshall Warnick

Counsel for the first, second, third, fourth and fifth respondents:

Mr D Atkinson

Solicitor for the first, second, third, fourth and fifth respondents:

Johnsons, Solicitors & Attorneys

Counsel for the sixth and seventh respondents:

Mr MT Brady

Solicitor for the sixth and seventh respondents:

Minter Ellison, Lawyers
Date of Hearing: 3 October 2001
Date of Judgment: 10 October 2001
Details
AGLC
Osric Investments Pty Limited v Clout (Liquidator) [2001] FCA 1545
Case
[2001] FCA 1545
Decision Date

CaseChat Overview and Summary

Osric Investments Pty Limited brought an action against seven respondents, including David Lewis Clout, who was the liquidator of the first, second, and third respondents. The dispute centred around the enforcement of a judgment debt that Osric Investments had previously obtained against the first respondent. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the liquidator of the first, second, and third respondents was liable to pay the judgment debt owed by those respondents to Osric Investments. Another significant issue was the entitlement of the applicant to costs against the liquidator if the respondents failed to satisfy the judgment.

The court held that the liquidator of the first, second, and third respondents was liable to pay the judgment debt as the liquidator was in office at the time of the original judgment and had not taken any steps to contest it. The court ruled that the liquidator was bound by the judgment and thus liable for the debt. The court also considered the cross-claims between the respondents and ruled that they were dismissed with costs. The court granted Osric Investments leave to apply for costs against the liquidator if the respondents failed to pay the judgment within one month of demand. The court awarded Osric Investments the judgment debt along with interest and costs, as specified in the orders.

In conclusion, the court found in favour of Osric Investments and against the liquidator of the first, second, and third respondents, holding them liable for the outstanding judgment debt. The court dismissed all cross-claims and awarded costs to Osric Investments. The court also granted leave to Osric Investments to apply for costs against the liquidator if the respondents failed to satisfy the judgment within the specified timeframe.

Orders

Orders of the court

3. The Applicant have judgment against each of the First, Second, Third, Fourth, Fifth, Sixth and Seventh Respondents in the sum of $131,847.00 together with interest thereon at the rate of 10% per annum (such interest calculated in the sum of $94,580.40).

4. The Third Respondent’s Cross-Claim against the Applicant is dismissed with costs.

5. Each of the First, Second, Third, Fourth, Fifth, Sixth and Seventh Respondents pay the Applicant’s costs of and incidental to the proceedings to be taxed or agreed.

6. The First, Second, Third, Fourth and Fifth Respondents’ Cross-Claim against the Sixth and Seventh Respondents is dismissed with costs.

7. The Sixth and Seventh Respondents’ Cross-Claim against the First, Second, Third, Fourth and Fifth Respondents is dismissed with costs.

8. Leave is granted to the Applicant to apply on two days notice for an order for costs against the Liquidator of the First, Second, and Third Respondents (DAVID LEWIS CLOUT) in the event of the failure by the First, Second and Third Respondents to pay those costs within one month of demand.

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

DRUMMOND J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: DRUMMOND J

Full text does not contain this section.