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Re Mento Developments (Aust) Pty Ltd

Re Mento Developments (Aust) Pty Ltd

Case [2009] VSC 343 17 August 2009

Jurisdiction

Limitation Periods

Breach of Contract

Admissibility of Evidence

Corporate Law & Governance

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT
CORPORATIONS LIST

No 6668 of 2005

IN THE MATTER OF MENTO DEVELOPMENTS (AUST) PTY LTD
ACN 005 862 457 (IN LIQ)

GIUSEPPE MICHELE RAMBALDI in his capacity as liquidator of MENTO DEVELOPMENTS (AUST) PTY LTD ACN 005 862 457 (IN LIQ)	Plaintiff
v
WIXART PTY LTD	Defendant

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June and 6 August 2009
DATE OF JUDGMENT:	17 August 2009
CASE MAY BE CITED AS:	Re Mento Developments (Aust) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VSC 343	Amended 18 August 2009

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CORPORATIONS – directions - court appointed liquidator’s application for directions under s 479(3) of the Corporations Act 2001 – jurisdiction of the court – whether the court is entitled to give directions where the questions relate to disputed claims against a third party – whether the court in its discretion should give directions where the questions relate to disputed claims against a third party – questions going to issue whether company in liquidation entitled to indemnify itself out of trust assets that it holds on trust for unit trusts – relevance of adversarial nature of proceedings – finding that court has jurisdiction and should give directions sought – limitation on findings to those necessary to give a direction on whether liquidator justified in administering the winding up on basis that company executed guarantee at trustee – application granted and directions given – s 479(3) of the Corporations Act 2001

CONTRACT – guarantee – construction - whether executed personally or in capacity as trustee – evidence – admissibility of extrinsic evidence to establish capacity

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P F Agardy	Frenkel Partners
For the Defendant	Mr M Galvin	Efron & Associates

Cases cited

ASC v Melbourne Asset Management Nominees Pty Ltd (1994) 121 ALR 626
Editions Tom Thompson Pty Ltd v Pilley (1997) 24 ACSR 617
Meadow Springs Fairway Resort Ltd(in liq) v Balanced Securities Ltd (2007) 25 ACLC 1433
Owners of “Shin Kope Maru” v Empire Shipping Co Inc (1994) 181 CLR 404
Re Ansett (2001) 39 ACSR 355
Re G B Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674
Re Interwest Hotels Pty Ltd (1993) 12 ACSR 78
Re JW Murphy & PC Allen; Re BPTC Ltd (in liq) (1996) 19 ACSR 569
Re Magic Aust (in liq) (1992) 7 ACSR 742
Re Riverside Nursing Care Pty Ltd [2004] FCA 93
Re Security Provident Fund Ltd (in liq); Rodger v Gourlay (1984) 9 ACLR 56
Sanderson v Classic Car Insurances Pty Ltd (1985) 10 ACLR 115
St Petra Inc v Petar (2008) 249 ALR 250

HIS HONOUR:

The Court appointed liquidator of Mento Developments (Aust) Pty Ltd, Giuseppe Rambaldi, seeks directions in the winding up of Mento Developments. Before setting out the specific matters on which he seeks directions it is convenient to outline the background facts.

Mento Developments was wound up on…

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.

Continue reading Re Mento Developments (Aust) Pty Ltd

Details

AGLC: Re Mento Developments (Aust) Pty Ltd [2009] VSC 343
Case: [2009] VSC 343
Decision Date: 17 August 2009

CaseChat Overview and Summary

The case of Re Mento Developments (Aust) Pty Ltd involved the liquidator of Mento Developments (Aust) Pty Ltd applying for directions under section 479(3) of the Corporations Act 2001. The application was made to the Supreme Court of New South Wales, with the central issue being whether the court had the jurisdiction to provide directions in relation to disputed claims against a third party. Additionally, the court needed to determine whether it should exercise its discretion to grant these directions. Specifically, the questions at hand involved whether the company in liquidation was entitled to indemnify itself from trust assets it held for unit trusts.

The court addressed the jurisdictional issue first, concluding that it indeed had the authority to provide the requested directions. The court recognised that the questions raised were pertinent to the liquidator's administration of the winding up process and were not extraneous to the company's insolvency. The adversarial nature of the proceedings did not preclude the court from providing the necessary directions. The court then proceeded to consider the admissibility of extrinsic evidence to establish the capacity in which the guarantee was executed, which was crucial to determining the company's entitlement to the indemnity.

The court found that the liquidator was justified in administering the winding up on the basis that the guarantee was executed in the capacity of the trustee. Consequently, the court granted the application for directions and provided the necessary instructions. The court limited its findings to those essential for guiding the liquidator on the basis of the guarantee's execution. This decision underscored the importance of the liquidator's role in navigating complex claims and the court's willingness to support that process within its jurisdictional bounds.

Orders