Re Dalewon Pty Ltd (in liquidation)

Case [2010] QSC 311

SUPREME COURT OF QUEENSLAND

CITATION:

Re Dalewon Pty Ltd (in liquidation) [2010] QSC 311

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)

and

DALEWON PTY LTD (ACN 069 181 755) (IN LIQUIDATION)

(First Respondent)

and

RICHARD JOHN HUGHES AND JOHN LETHBRIDGE GREIG AS LIQUIDATORS OF DALEWON PTY LTD (ACN 069 181 755) (IN LIQUIDATION)

(Second Respondents)

and

LINDA SAUNDERS AND TREVOR PAGANONI

(Cross Applicants)

AND

LINDA SAUNDERS AND TREVOR PAGANONI

(Applicants)

and

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)

(First Respondent)

and

DALEWON PTY LTD (ACN 069 181 755) (IN LIQUIDATION)

(Second Respondent)

and

RICHARD JOHN HUGHES AND JOHN LETHBRIDGE GREIG AS LIQUIDATORS OF DALEWON PTY LTD (ACN 069 181 755) (IN LIQUIDATION)

(Third Respondents)

FILE NOS:

BS 7295 of 2009

BS 5180 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

8 June 2010

JUDGE:

McMurdo J

ORDER:

The amended application of the liquidators, in so far as it seeks the declarations set out in paragraphs 6, 7, 8 and 8A of that application, be dismissed.1.   

Paragraphs 4A, 7B, 26, 27 and 28 as well as paragraphs 4 and 5 of the prayer for relief, within the amended points of claim filed on 13 May 2010, be struck out.  2.   

Paragraphs 4A, 7B, 26, 27, 28, 29 and 30, together with paragraphs 4 and 5 of the prayer for relief, within the second amended points of claim filed on 2 June 2010, be struck out.3.   

4.    The application within proceedings number 5180 of 2010 be dismissed.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – INDEMNITY, LIEN AND REIMBURSEMENT – where Dalewon Pty Ltd (the company) was the trustee of two trusts and was replaced as the trustee in each case shortly before the company was ordered to be wound up – where in each case the company is still the legal owner of the trust property – where the liquidators of the company have incurred fees and outlays in respect of each trust – whether the liquidators are entitled to a lien or charge over any and all assets of the company and are entitled to realise those assets, in order to meet their fees and outlays.

CORPORATIONS – FINANCIAL SERVICES AND MARKETS – MARKET MISCONDUCT AND OTHER PROHIBITED CONDUCT – MISLEADING, DECEPTIVE OR UNCONSCIONABLE CONDUCT – where Dalewon Pty Ltd (the company) subscribed for partly paid units in the Brisconnections Management Company Limited (Brisconnections)  project – where it is alleged that there was no debt due and payable by the company until certain events occurred – where Brisconnections served the company with a statutory demand before those events occurred – whether Brisconnections: engaged in…

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Details
AGLC
Re Dalewon Pty Ltd (in liquidation) [2010] QSC 311
Case
[2010] QSC 311
Decision Date

CaseChat Overview and Summary

In the case of Re Dalewon Pty Ltd (in liquidation), the liquidators of Dalewon Pty Ltd sought to enforce their right to a lien over the assets of the company to cover fees incurred in their role. Dalewon had previously acted as trustee for two trusts and, as a result, remained the legal owner of the trust property. The liquidators argued that they were entitled to a charge over the assets of Dalewon to meet their costs. In a separate proceeding, it was alleged that Brisconnections Management Company Limited had engaged in misleading and deceptive conduct when it issued a statutory demand to Dalewon before certain events occurred, which should have determined any debt. The former controllers of Dalewon also sought leave to bring proceedings against Brisconnections on behalf of the company for allegedly winding up the company on a falsely claimed debt.

The court was required to determine whether the liquidators of Dalewon were entitled to a lien or charge over the company's assets to cover their fees, and if Brisconnections had engaged in misleading and deceptive conduct. Additionally, the court needed to decide whether the former controllers of Dalewon should be granted leave to bring proceedings against Brisconnections on behalf of the company.

The court dismissed the liquidators' claims for a lien over Dalewon's assets and struck out several paragraphs from the liquidators' amended points of claim, finding that the liquidators were not entitled to a charge over the assets. Regarding the allegations of misleading and deceptive conduct, the court found that Brisconnections had not engaged in such conduct. The court also dismissed the application brought by the former controllers of Dalewon against Brisconnections, ruling that they were not entitled to bring proceedings on behalf of the company.

The final orders included dismissing the liquidators' amended application for certain declarations and striking out specific paragraphs from the liquidators' amended and second amended points of claim. Additionally, the court dismissed an application in a separate proceeding and denied the former controllers of Dalewon leave to bring proceedings against Brisconnections on behalf of the company.

Orders

Orders of the court

The amended application of the liquidators, in so far as it seeks the declarations set out in paragraphs 6, 7, 8 and 8A of that application, be dismissed.1.

Paragraphs 4A, 7B, 26, 27 and 28 as well as paragraphs 4 and 5 of the prayer for relief, within the amended points of claim filed on 13 May 2010, be struck out. 2.

Paragraphs 4A, 7B, 26, 27, 28, 29 and 30, together with paragraphs 4 and 5 of the prayer for relief, within the second amended points of claim filed on 2 June 2010, be struck out.3.

4. The application within proceedings number 5180 of 2010 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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