Re Farley Bay Pty Ltd (in liq) - [2022] VSC 604

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

CORPORATIONS LIST

S ECI 2021 00229

IN THE MATTER of ss 90-15 and 90-20 of Schedule 2 Insolvency Practice Schedule (Corporations) of the Corporations Act 2001 (Cth)

AND

IN THE MATTER of Farley Bay Pty Ltd (in liquidation) (ACN 063 425 981)

BETWEEN:

FARLEY BAY PTY LTD (IN LIQUIDATION) (ACN 063 425 981)	First Plaintiff
JOSEPH LOEBENSTEIN in his capacity as Liquidator of FARLEY BAY PTY LTD (IN LIQUIDATION) (ACN 063 425 981)	Second Plaintiff
v
MICHAEL DAVIS (A PSEUDONYM)	Defendant

---

JUDGE:	Gardiner AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	15 October 2021, for mention on 9 August 2022 and 9 September 2022, last submissions filed 6 October 2022
DATE OF JUDGMENT:	11 October 2022 (revised 18 October 2022)
CASE MAY BE CITED AS:	Re Farley Bay Pty Ltd (in liq)
MEDIUM NEUTRAL CITATION:	[2022] VSC 604

---

CORPORATIONS — Application by liquidator of company for directions under ss 90‑15 and 90‑20 of Schedule 2 Insolvency Practice Schedule (Corporations) concerning real property registered in name of the company and other matters arising in the liquidation — Protracted proceedings in the Federal Circuit and Family Court of Australia over several years between the defendant and his former de facto spouse who was the director of the company prior to her bankruptcy — Application by defendant for transfer of the proceeding commenced by liquidator to the Federal Circuit and Family Court of Australia pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) or in the alternative s 1337H(2) of the Corporations Act 2001 (Cth) to be heard together with an application by defendant under s 90SN of the Family Law Act 1975 (Cth) which seeks to allege among other things that the defendant has equitable interest in property registered in the name of the company — Consideration of the principles to be applied in transfer of proceeding to another court — Armstrong and Shaw Pty Ltd (in liq) v Whiteman [2020] FCA 849 and Yara Pilbara Fertilisers Pty Ltd (formerly known as Burrup Fertilisers Pty Ltd) v Oswal (No 8) [2015] FCA 49 — Liquidation unable to proceed until determination of question of defendant’s alleged equitable interest — Order made transferring liquidator’s proceeding to Federal Circuit and Family Court of Australia pursuant to s 1337H(2) of the Corporations Act 2001 (Cth).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr A G Serong, solicitor	Serong Legal
For the Defendant	Mr C Möller of counsel Mr C Möller of counsel, (10 August 2021) Mr G Efron solicitor (23 September 2021) Mr D Leggatt solicitor (15 October 2021) Mr N Pinto solicitor (9 August 2022, 9 September 2022) Mr G J Moloney of counsel (11 October 2022 for the defendant)	Efron & Associates After 1 October 2021, Coterminous Legal After 2 August 2022, Vasilaras + Co Lawyers
For Stephen John Michell, an interested party	Mr S Rubenstein of counsel Mr D Brett, solicitor (23 September 2021, 9…

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 Farley Bay Pty Ltd (in liq) 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: [2022] VSC 604
Decision Date: 11 October 2022 (revised 18 October 2022)

CaseChat Overview and Summary

In the matter of the liquidation of Farley Bay Pty Ltd, the applicant liquidator of the company sought directions from the court concerning real property registered in the name of the company. The defendant, who had been in a protracted legal dispute with the former director of the company, now the bankrupt, sought a transfer of the proceedings to the Federal Circuit and Family Court of Australia. This transfer was sought either under section 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) or section 1337H(2) of the Corporations Act 2001 (Cth). Alternatively, the defendant requested that the proceeding be heard together with an application under section 90SN of the Family Law Act 1975 (Cth), which seeks to allege that the defendant holds an equitable interest in the property registered in the name of the company. The liquidator opposed the defendant's application.

The court considered the legal principles relevant to the transfer of proceedings. The case law of Armstrong and Shaw Pty Ltd (in liq) v Whiteman and Yara Pilbara Fertilisers Pty Ltd (formerly known as Burrup Fertilisers Pty Ltd) v Oswal provided guidance on the transfer of proceedings between courts. The court held that the liquidation of the company could not proceed until the determination of the question of the defendant's alleged equitable interest in the property. The court found that the proceeding should be transferred to the Federal Circuit and Family Court of Australia pursuant to section 1337H(2) of the Corporations Act 2001 (Cth). The court considered that this was the most appropriate forum to determine the question of the defendant's equitable interest.

The court made an order transferring the liquidator's proceeding to the Federal Circuit and Family Court of Australia. The order was made pursuant to section 1337H(2) of the Corporations Act 2001 (Cth). The court found that this was the most appropriate forum to determine the question of the defendant's equitable interest. The court noted that the transfer of the proceeding would allow for a more efficient and effective resolution of the dispute. The court considered that this was in the best interests of all parties involved. The court also noted that the transfer of the proceeding would avoid any potential duplication of effort and resources. The court was satisfied that the transfer of the proceeding was appropriate and in the interests of justice.

Orders