Rambaldi v Mullins (No 3)

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FEDERAL COURT OF AUSTRALIA

Rambaldi v Mullins (No 3) [2016] FCA 1145

File number: VID 193 of 2014
Judge: MURPHY J
Date of judgment: 19 September 2016
Catchwords: BANKRUPTCY AND INSOLVENCY – revised orders for relief – application for stay of judgment – application refused – application for judgment and for leave to file Cross-Claim after hearing - application refused
Cases cited:

Australian Competition and Consumer Commission v BMW (Aust) Limited (No 2) [2003] FCA 864

Alexander v Cambridge Credit Corp Ltd (Receivers Appointed) (1985) 2 NSWLR 685

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Momentum Productions Pty Ltd v Lewarne [2007] FCA 1988

Seafolly Pty Ltd v Madden (No 3) [2013] FCA 316

Date of hearing: Heard on the papers
Date of last submissions: 5 September 2016
Registry: Victoria
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Category: Catchwords
Number of paragraphs: 26
Counsel for the Applicants: Mr P Fary
Solicitor for the Applicants: Frenkel Partners
Counsel for the First Respondent: The First Respondent did not appear
Counsel for the Second to Eighth Respondents: Mr M A Ashurst SC and Mr L Corbett
Solicitor for the Second to Eighth Respondents: Whittens & McKeough Lawyers
Counsel for the Ninth Respondent: The Ninth Respondent did not appear

ORDERS

VID 193 of 2014
BETWEEN:

GESS MICHAEL RAMBALDI

First Applicant

ANDREW REGINALD YEO

Second Applicant
AND:

TEAGAN MULLINS

First Respondent

CIVIL PACIFIC SERVICES GROUP PTY LTD

Second Respondent

GLOBAL HR GROUP PTY LTD (and others named in the Schedule)

Third Respondent

JUDGE:

MURPHY J

DATE OF ORDER:

19 SEPTEMBER 2016

THE COURT ORDERS THAT:

1.The orders of Murphy J made on 22 August 2016 be vacated.

2.The Second to Eighth Respondents (jointly and severally) pay the Applicants $2,835,304.97 which is comprised of the principal debt of $2,395,000 and interest of $440,304.97 to 19 September 2016.

3.Orders 1 and 2 of the orders of Murphy J made on 28 March 2014 be vacated.

4.The undertaking given to the Court by the Applicants on 28 March 2014 is discharged.

5.The Second to Eighth Respondents pay the Applicants’ costs of the proceedings, including reserved costs, on a party/party basis.

6.The application for a stay of these orders is refused.

7.The date by which any Notice of Appeal is to be filed is 21 days from the date of these orders.

8.The application by the First Respondent made in submissions dated 5 September 2016 is refused.

9.Liberty to apply.

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


REASONS FOR JUDGMENT

MURPHY J:

  1. On 22 August 2016 the Court made orders and declarations in this proceeding and handed down reasons for judgment (“the substantive judgment”).  In these reasons the defined names and terms carry the same meaning as in the substantive judgment.

    THE REVISED ORDERS FOR RELIEF

  2. In the substantive judgment I expressed a concern that the relief ordered may provide double recovery…

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Details
Case
[2016] FCA 1145
Decision Date

CaseChat Overview and Summary

In the matter of Rambaldi v Mullins (No 3), the respondents, including the second to eighth respondents, applied for revised orders for relief. The first respondent, Teagan Mullins, also made an application for judgment and leave to file a cross-claim after the hearing. The legal issues before the court were whether the first respondent had properly applied for the orders she sought and if the respondents were to be granted a stay of judgment. The court had to determine if the first respondent's submissions were sufficient to warrant the orders she sought and if the respondents' application for a stay of judgment was justified.

The court found that the first respondent had not made a proper application to the court. The submissions she filed were on different issues from those upon which the court had sought submissions, and she did not provide the necessary affidavit to support her proposed cross-claim. The court found that the first respondent had not demonstrated that she was entitled to the orders she sought. The court also found that the respondents' application for a stay of judgment was not justified. The court considered the appropriate time frame for the respondents to file any notice of appeal and granted them 21 days from the date of these orders to do so.

The court vacated the orders of Murphy J made on 22 August 2016 and 28 March 2014. The second to eighth respondents were ordered to pay the applicants $2,835,304.97, which was comprised of the principal debt of $2,395,000 and interest of $440,304.97 to 19 September 2016. The undertaking given to the court by the applicants on 28 March 2014 was discharged. The second to eighth respondents were also ordered to pay the applicants' costs of the proceedings, including reserved costs, on a party/party basis. The application for a stay of these orders was refused. The date by which any notice of appeal was to be filed was 21 days from the date of these orders. The application by the first respondent made in submissions dated 5 September 2016 was refused. Liberty to apply was granted.

Orders

Orders of the court

1. The orders of Murphy J made on 22 August 2016 be vacated.

2. The Second to Eighth Respondents (jointly and severally) pay the Applicants $2,835,304.97 which is comprised of the principal debt of $2,395,000 and interest of $440,304.97 to 19 September 2016.

3. Orders 1 and 2 of the orders of Murphy J made on 28 March 2014 be vacated.

4. The undertaking given to the Court by the Applicants on 28 March 2014 is discharged.

5. The Second to Eighth Respondents pay the Applicants’ costs of the proceedings, including reserved costs, on a party/party basis.

6. The application for a stay of these orders is refused.

7. The date by which any Notice of Appeal is to be filed is 21 days from the date of these orders.

8. The application by the First Respondent made in submissions dated 5 September 2016 is refused.

9. Liberty to apply.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The second to eighth respondents request 21 days from the date of these orders to file any Notice of Appeal. In my view it is appropriate that they be allowed that time.THE FIRST RESPONDENT’S APPLICATION FOR JUDGMENT The first respondent, Ms Teagan Mullins, has at all times been a party in the proceeding but she put on no evidence or submissions and played no active role. On 22 August 2016 I handed down reasons for judgment and invited submissions from the parties on several discrete issues. On 5 September 2016 the first respondent filed written submissions, on different issues from those upon which I sought submissions. She seeks orders in the following terms:1The name of the First Respondent be amended from “Teagan Mullins” to “Teagan Maree Mullens”.2Judgment for Teagan Maree Mullens against the Second to Eighth Respondents in the sum of $1,308,832 plus interest.3 The Second to Eighth Respondents shall transfer the shares:(a)held by AR & KH Pty Ltd in the Fifth Respondent, GHR Custodian Pty Ltd (“GHR Custodian”); and(b)held by GHR Custodian in the Second and Fourth Respondents, namely Civil Pacific Services Group Pty Ltd and Global Civils Group Pty Ltd respectively,to the First Respondent within twenty-one (21) days, and shall do all things and sign all documents necessary to give effect to these orders. As directors of AR & KH Pty Ltd the Seventh and Eighth Respondents shall take all steps necessary to transfer to the Trustees half (in number and value) of the shares held by that company in GHR Custodian. The second to eighth respondents and the Trustees oppose these orders. The first respondent seeks these orders in her capacity as the Administrator of the Estate of the late Joseph Antoun and seeks leave to tender Letters of Administration dated 22 February 2016. She did not make a proper application to the Court. The submissions state that “if objection is taken to the lack of formality a proposed Interlocutory Application and Cross-Claim are annexed to these submissions.” The proposed Cross-Claim that is annexed does not contain any grounds. It states that the grounds are set out in an accompanying affidavit but no affidavit has been filed. The first respondent submits that the orders she seeks accord with the essential findings of fact in the substantive judgment. She argues that the basis for the relief ordered for the Trustees was that Antoun entered into the October Deed, in part, as agent for the Bankrupt. She contends that if the Trustees are entitled to relief because Antoun acted as the Bankrupt’s agent in relation to half of the monies payable under the October Deed, it follows that the first respondent (as Administrator of Antoun’s estate) is entitled to relief for the other half. On the first respondent’s submissions Antoun’s estate is entitled to judgment in the sum of $1,308,832 and is also entitled to have the shares in the companies in the Global business transferred to her by virtue of clause 2(c) of the October Deed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.