Legal Research
Cases
Re Ascot Vale Self-Storage Centre Pty Ltd (in liquidation)

Re Ascot Vale Self-Storage Centre Pty Ltd (in liquidation)

Link copied

Case Copied 11 March 2014 66 min read

Contents

On this page

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT

CORPORATIONS LIST

No. 04313 of 2013

IN THE MATTER OF ASCOT VALE SELF-STORAGE CENTRE PTY LTD
(receivers and managers appointed) (in liquidation)

BETWEEN:

RE NOM DE PLUME NOMINEES PTY LTD (ACN 006 750 090) and RICHARD JOHN LEGGO	Appellants
v
SIMON WALLACE-SMITH (in his capacity as liquidator of Ascot Vale Self-Storage Centre Pty Ltd) (in liquidation) (ACN 092 643 939)	Respondent

---

JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2013
DATE OF JUDGMENT:	11 March 2014
CASE MAY BE CITED AS:	Re Ascot Vale Self-Storage Centre Pty Ltd (in liquidation)
MEDIUM NEUTRAL CITATION:	[2014] VSC 75

---

CORPORATIONS – Appeal from Associate Judge granting approval under s 477(2B) of the Corporations Act2001 (Cth) for liquidator to enter a funding agreement – Whether funding agreement against interests of creditors – Whether the Associate Judge in exercising discretion to grant approval failed to take into account relevant factors - Whether funding agreement uncertain - Appeal allowed.

PRACTICE AND PROCEDURE - Whether error in refusing leave to admit into evidence witness statements filed in another proceeding – Home Office v Harman considered – Whether special circumstances existed – Discretion exercised to modify or release implied undertaking to admit statements into evidence.

PRACTICE AND PROCEDURE – Nature of appeal from an Associate Judge to a Judge of the Civil Division – Admissions of fresh evidence on appeal.

---

APPEARANCES:	Counsel	Solicitors
For the Appellants	P.J. Bick QC with B. Gibson	SBA Law
For the Respondent	M.N.C. Harvey with C.E. Gobbo	Piper Alderman

HIS HONOUR:

Introduction

I have before me an appeal from the decision of an Associate Judge who granted Simon Wallace-Smith, the liquidator of Ascot Vale Self-Storage Centre Pty Ltd (in liquidation) (AVSS), approval to enter into a funding agreement on behalf of AVSS where obligations entered into under the agreement may be discharged by performance more than three months after the agreement is entered into, under s 477(2B) of the Corporations Act 2001 (Cth) (the Act). For the reasons given below, I would allow the appeal.

The nature of the appeal

The appellants raised a preliminary issue as to the nature of the appeal. In the hearing before the Associate Judge the appellants had relied on an affidavit of Mr Schnaider, the solicitor for the appellants. Mr Schnaider deposed to matters relating to the affairs of AVSS that he had been informed of by Mr Leggo. In the appeal, the appellants wish to rely on an affidavit sworn by Mr Leggo, the second appellant, in which Mr Leggo verifies the instructions he gave to Mr Schnaider that Mr Schnaider included in his affidavit on information and belief. Further, the appellants also wish to lead evidence through Mr Leggo’s affidavit that he is prepared to fund a special liquidator for the limited purpose of investigating, and if it is in the interests of AVSS to do so, bringing proceedings to set…

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.

Keep reading for free

Create a free CaseChat account to read Re Ascot Vale Self-Storage Centre Pty Ltd (in liquidation) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] VSC 75
Decision Date: 11 March 2014

CaseChat Overview and Summary

The appeal before the Court involved the liquidators of Ascot Vale Self-Storage Centre Pty Ltd, in liquidation, who sought to challenge the decision of an Associate Judge approving a funding agreement under section 477(2B) of the Corporations Act 2001 (Cth). The liquidators argued that the Associate Judge erred in granting approval as the funding agreement was against the interests of the creditors and failed to take into account relevant factors. Furthermore, they contended that the funding agreement was uncertain, lacking clarity and certainty in its terms. The Court of Appeal was tasked with determining whether the Associate Judge had exercised their discretion appropriately and whether the agreement was indeed against the creditors' interests.

The central legal issues before the Court were whether the Associate Judge correctly exercised the discretion granted under section 477(2B) of the Corporations Act, and whether the funding agreement was uncertain or contrary to the interests of the creditors. The Court had to consider the extent to which the Associate Judge took into account relevant factors and whether the decision was legally sound. Additionally, the Court needed to examine the terms of the funding agreement to determine if they were clear and certain.

The Court of Appeal found that the Associate Judge had exercised their discretion improperly by failing to take into account relevant factors and by approving a funding agreement that was uncertain and potentially against the interests of the creditors. The Court held that the Associate Judge had not adequately considered the interests of the creditors and that the agreement did not provide the necessary clarity and certainty. Consequently, the Court allowed the appeal and set aside the Associate Judge's decision. The Court also addressed the procedural issue of admitting witness statements filed in another proceeding, exercising its discretion to modify or release the implied undertaking to admit the statements into evidence.

The final orders of the Court were to set aside the Associate Judge's decision approving the funding agreement and to remit the matter back to the Associate Judge for reconsideration in light of the Court's findings. The Court also directed the Associate Judge to consider the procedural issue of the witness statements and exercise their discretion in admitting them into evidence, if appropriate.

Orders