Re Dalewon P/L (in liq) - [2009] QSC 370

SUPREME COURT OF QUEENSLAND

CITATION:

Re Dalewon P/L (in liq) [2009] QSC 370

PARTIES:

BRISCONNECTIONS MANAGEMENT COMPANY LIMITED (ACN 128 614 291) as responsible entity for BRISCONNECTIONS HOLDING TRUST (ARSN 131 125 025) and BRISCONNECTIONS INVESTMENT TRUST (ARSN 131 124 813)
(applicant)

v

DALEWON PTY LTD (ACN 069 181 755) (IN LIQ)
(respondent)

LINDA SAUNDERS and TREVOR PAGANONI
(cross applicants)

FILE NO/S:

BS 7295 of 2009

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 November 2009

DELIVERED AT:

Brisbane

HEARING DATE:

13 November 2009

JUDGE:

McMurdo J

ORDER:

Upon Linda Saunders and Trevor Paganoni undertaking that they will not deal with any assets of Dalewon Pty Ltd (in liq) (“the company”) held in its own right until the hearing and determination of the cross-application, it is ordered that Linda Saunders and Trevor Paganoni provide to the liquidators by 4.00 pm 25 November 2009:

1. all of the books and records of the company; and

2. a report as to the affairs of the company as required by s 475 of the Corporations Act 2001 (Cth).

CATCHWORDS:

EQUITY – GENERAL PRINCIPLES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – MISCELLANEOUS OTHER POWERS, DUTIES AND LIABILITIES – where the company had been replaced as trustee of a trust – where the company was wound up – where counsel for the officers of the company undertook not to deal with any assets held by the company in its own right – whether the officers should be ordered to deliver up to the liquidators books, records, money and property of the company

CORPORATIONS – WINDING UP – LIQUIDATORS – STATEMENTS OF COMPANY’S AFFAIRS – where the officers had provided a report purporting to be a list of assets and liabilities – whether the officers should provide a report including all assets and all liabilities whether incurred as trustee or otherwise

Corporations Act 2001 (Cth), s 475

Re Indopal Pty Ltd (1987) 12 ACLR 54, applied

Southern Wine Corp (in liq) v Frankland River Olive Co Ltd (2005) 31 WAR 162, cited

COUNSEL:

G Handran for the applicant
C D Coulsen for the respondent
M Steele for the cross applicants

SOLICITORS:

Results Legal for the applicant
McInnes Wilson for the respondent
Brightline Lawyers as town agents for Foster Nicholson for the cross applicants

Dalewon Pty Ltd (“the company”) was wound up by an order of this court on 29 July 2009. This is an application by the liquidators, Mr Greig and Mr Hughes, for orders against Ms Saunders and Mr Paganoni, respectively the company’s director and secretary. I shall refer to them as the respondents.

The liquidators seek orders for the delivery up of the books and records of the company and of any of its money and property which is in the hands of the respondents. They seek an order for the provision of a report as to affairs as required by s 475 of the Corporations Act 2001 (Cth). And they seek an interlocutory injunction…

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.

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Details

Case: [2009] QSC 370
Decision Date: 18 November 2009

CaseChat Overview and Summary

The case of Re Dalewon P/L (in liq) involved a company that had been replaced as trustee of a trust. Following this, the company was wound up, and the matter before the court was whether the officers of the company, Linda Saunders and Trevor Paganoni, should be ordered to deliver up to the liquidators certain books, records, money, and property of the company. Counsel for the officers undertook not to deal with any assets held by the company in its own right until the matter was determined.

The court needed to decide whether the officers should be compelled to provide the liquidators with all the books and records of the company and a comprehensive report on the company’s affairs, including all assets and liabilities whether incurred as trustee or otherwise. The issue hinged on the obligations of the officers under the Corporations Act 2001 (Cth), particularly in relation to the duties of trustees and the responsibilities of the liquidators in a winding-up scenario.

The court found that the officers should be ordered to provide the requested materials to the liquidators. It reasoned that the officers, having been involved in the management of the company’s affairs, were in possession of information critical to the liquidators’ duty to ascertain the company's assets and liabilities. The court emphasised the importance of transparency and accountability in such situations. Consequently, the court ordered that Linda Saunders and Trevor Paganoni provide the books and records of the company and a report on its affairs to the liquidators by a specified date.

The final orders required Linda Saunders and Trevor Paganoni to deliver to the liquidators all of the company’s books and records, as well as a report detailing the company’s affairs, by 4.00 pm on 25 November 2009. This was subject to their undertaking not to deal with any assets of the company held in its own right until the hearing and determination of the cross-application.

Orders

Orders of the court

Upon Linda Saunders and Trevor Paganoni undertaking that they will not deal with any assets of Dalewon Pty Ltd (in liq) (“the company”) held in its own right until the hearing and determination of the cross-application, it is ordered that Linda Saunders and Trevor Paganoni provide to the liquidators by 4.00 pm 25 November 2009:

1. all of the books and records of the company; and

2. a report as to the affairs of the company as required by s 475 of the Corporations Act 2001 (Cth).

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Re Dalewon P/L (in liq) [2009] QSC 370
PARTIES:	BRISCONNECTIONS MANAGEMENT COMPANY LIMITED (ACN 128 614 291) as responsible entity for BRISCONNECTIONS HOLDING TRUST (ARSN 131 125 025) and BRISCONNECTIONS INVESTMENT TRUST (ARSN 131 124 813) (applicant) v DALEWON PTY LTD (ACN 069 181 755) (IN LIQ) (respondent) LINDA SAUNDERS and TREVOR PAGANONI (cross applicants)
FILE NO/S:	BS 7295 of 2009
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 November 2009
DELIVERED AT:	Brisbane
HEARING DATE:	13 November 2009
JUDGE:	McMurdo J
ORDER:	Upon Linda Saunders and Trevor Paganoni undertaking that they will not deal with any assets of Dalewon Pty Ltd (in liq) (“the company”) held in its own right until the hearing and determination of the cross-application, it is ordered that Linda Saunders and Trevor Paganoni provide to the liquidators by 4.00 pm 25 November 2009: 1. all of the books and records of the company; and 2. *a report as to the affairs of the company as required by s 475 of the Corporations Act* 2001 (Cth).**
CATCHWORDS:	EQUITY – GENERAL PRINCIPLES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – MISCELLANEOUS OTHER POWERS, DUTIES AND LIABILITIES – where the company had been replaced as trustee of a trust – where the company was wound up – where counsel for the officers of the company undertook not to deal with any assets held by the company in its own right – whether the officers should be ordered to deliver up to the liquidators books, records, money and property of the company CORPORATIONS – WINDING UP – LIQUIDATORS – STATEMENTS OF COMPANY’S AFFAIRS – where the officers had provided a report purporting to be a list of assets and liabilities – whether the officers should provide a report including all assets and all liabilities whether incurred as trustee or otherwise Corporations Act 2001 (Cth), s 475 Re Indopal Pty Ltd (1987) 12 ACLR 54, applied Southern Wine Corp (in liq) v Frankland River Olive Co Ltd (2005) 31 WAR 162, cited
COUNSEL:	G Handran for the applicant C D Coulsen for the respondent M Steele for the cross applicants
SOLICITORS:	Results Legal for the applicant McInnes Wilson for the respondent Brightline Lawyers as town agents for Foster Nicholson for the cross applicants