Powell, in the matter of Garden Estate Hackham Pty Ltd (Receivers and Managers Appointed)

[2012] FCA 1016

FEDERAL COURT OF AUSTRALIA

Powell, in the matter of Garden Estate Hackham Pty Ltd (Receivers and Managers Appointed) [2012] FCA 1016

Citation:		Powell, in the matter of Garden Estate Hackham Pty Ltd (Receivers and Managers Appointed) [2012] FCA 1016
Parties:		CHRISTOPHER ROBERT POWELL AND STEPHEN JAMES DUNCAN AS RECEIVERS AND MANAGERS OF GARDEN ESTATE HACKHAM PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 139 883 177, GARDEN ESTATE CHRISTIES PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 140 855 956, FERNLEIGH GARDENS ESTATE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 054 868 398 AND ESTATE LAND HOLDINGS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 115 063 011 v GARDEN ESTATE HACKHAM PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 139 883 177, GARDEN ESTATE CHRISTIES PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 140 855 956, FERNLEIGH GARDENS ESTATE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 054 868 398 and ESTATE LAND HOLDINGS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 115 063 011
File number:		SAD 135 of 2012
Judge:		BESANKO J
Date of judgment:		19 September 2012
Date of hearing:	29 August 2012
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	8
Counsel for the Plaintiffs:	Ms G Walker
Solicitor for the Plaintiffs:	Madsen Rowley
Counsel for the Defendants:	Mr N L Strawbridge
Solicitor for the Defendants:	WBH Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 135 of 2012

IN THE MATTER OF GARDEN ESTATE HACKHAM PTY LTD

BETWEEN:

CHRISTOPHER ROBERT POWELL AND STEPHEN JAMES DUNCAN AS RECEIVERS AND MANAGERS OF GARDEN ESTATE HACKHAM PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 139 883 177, GARDEN ESTATE CHRISTIES PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 140 855 956, FERNLEIGH GARDENS ESTATE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 054 868 398 AND ESTATE LAND HOLDINGS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 115 063 011
Plaintiffs

AND:

GARDEN ESTATE HACKHAM PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 139 883 177
First Defendant

GARDEN ESTATE CHRISTIES PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 140 855 956
Second Defendant

FERNLEIGH GARDENS ESTATE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 054 868 398
Third Defendant

ESTATE LAND HOLDINGS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 115 063 011
Fourth Defendant

JUDGE:	BESANKO J
DATE OF ORDER:	19 SEPTEMBER 2012
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The defendants pay the plaintiffs’ costs of the proceeding assessed on an indemnity basis.  

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 135 of 2012

IN THE MATTER OF GARDEN ESTATE HACKHAM PTY LTD

BETWEEN:

CHRISTOPHER ROBERT POWELL AND STEPHEN JAMES DUNCAN AS RECEIVERS AND MANAGERS OF GARDEN ESTATE HACKHAM PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 139 883 177, GARDEN ESTATE CHRISTIES PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 140 855 956, FERNLEIGH GARDENS ESTATE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 054 868 398 AND ESTATE LAND HOLDINGS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 115 063 011
Plaintiffs

AND:

GARDEN ESTATE HACKHAM PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 139 883 177
First Defendant

GARDEN ESTATE CHRISTIES PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 140 855 956
Second Defendant

FERNLEIGH GARDENS ESTATE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 054 868 398
Third Defendant

ESTATE LAND HOLDINGS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 115 063 011
Fourth Defendant

JUDGE:	BESANKO J
DATE:	19 SEPTEMBER 2012
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for costs by the receivers and managers, Mr Christopher John Powell and Mr Stephen James Duncan, of four companies against those companies. The four companies are:

   Garden Estate Hackham Pty Ltd (Receivers and Managers Appointed) ACN 139 883 177
   Garden Estate Christies Pty Ltd (Receivers and Managers Appointed) ACN 140 855 956
   Fernleigh Gardens Estate Pty Ltd (Receivers and Managers Appointed) ACN 054 868 398
   Estate Land Holdings Pty Ltd (Receivers and Managers Appointed) ACN 115 063 011

2. Messrs Powell and Duncan were jointly and severally appointed as receivers and managers over all of the undertaking, property and assets of each of the four companies (“the Property”) between 21 and 22 May 2012. The fixed charges included as part of the property the books and records of the company.

3. The receivers and managers made requests to be given the books and records of each of the four companies. The receivers and managers took the view that those requests were not met and, on 21 June 2012, they issued an application in this Court under s 431 and s 1324 of the Corporations Act 2001 (Cth) (“Corporations Act”) seeking “injunctive” orders that the four companies make all of their books which relate to the Property available for inspection by the receivers and managers.

4. On 26 June 2012 I made the following order:

   1.Before 4pm on Monday 2 July 2012, the defendants make available to the plaintiffs for inspection and copying in a place in Adelaide, South Australia all of the books and records of the defendant companies relating to all of the undertaking, property and assets of each of those companies.

5. On 13 July 2012 I made the following orders:

   1.The time for compliance with paragraph 1 of the orders made on 26 June 2012 be extended to 4pm on 16 July 2012.

   2.The defendants file and serve an affidavit deposing to where all of the documents of the defendant companies were stored, when they left their possession, where the documents may now be found and all the searches that have been undertaken to locate and provide the documents, by 4pm, 18 July 2012.

   3.By 4pm on 16 July 2012, the defendants make available to the plaintiffs for uplifting and copying in a place in Adelaide, South Australia all of the books and records of the defendant companies relating to all of the undertaking, property and assets of each of those companies, including those documents already inspected by the plaintiffs, on the plaintiff’s undertaking to maintain the integrity of the documentation and to return after copying to the solicitors for the defendants.

6. The receivers and managers do not press for any further orders on their application other than an order for the costs of the application to be assessed on an indemnity basis.

7. On the hearing of the application for costs, the receivers and managers handed up a schedule setting out the requests made by them for the books and records of the four companies and the responses of the four companies. I am satisfied that the schedule accurately reflects the affidavit evidence of the receivers and managers.

8. I am satisfied that the receivers and managers made reasonable requests for the books and records and that, while some books and records were provided, the requests were not met. I am satisfied that the receivers and managers warned the four companies that if the requests were not met then an application under the Corporations Act would be made. Furthermore, the companies were warned that if an application was made, costs on an indemnity basis would be sought. I am satisfied that a considerable volume of books and records were made available to the receivers and managers by the four companies after the application was issued. Nothing in Mr James Michalaka’s affidavit sworn on 18 July 2012 contradicts this conclusion. In those circumstances, an order that the defendants pay the plaintiffs’ costs should be made. The only submission made against the application for costs was that the plaintiffs and the defendants were the same parties and in those circumstances an order for costs could not be made. I reject that contention. The plaintiffs are Messrs Powell and Duncan in their capacity as receivers and managers of the four companies against the four companies. An order for costs can and should be made. Furthermore, I have and should exercise the power to order that the costs be paid on an indemnity basis (Federal Court of Australia Act 1976 (Cth), s 43; Federal Court Rules 2011, Rule 40.02). There was never any substantive defence to the application.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:       19 September 2012