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Re MIG Property Services Pty Ltd

Re MIG Property Services Pty Ltd

Case [2012] VSC 122 23 March 2012

Winding Up & Liquidation

Appeal

Statutory Interpretation

Insolvency Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY
COMMERCIAL COURT
CORPORATIONS LIST

No. 7807 of 2008

IN THE MATTER OF MIG PROPERTY SERVICES PTY LTD
(ACN 006 657 174)

BETWEEN:

MIG PROPERTY SERVICES PTY LTD (IN LIQUIDATION) (ACN 006 657 174)	Appellant
- and -
GEOFFREY NIELS HANDBERG (IN HIS CAPACITY AS LIQUIDATOR OF S&D INTERNATIONAL PTY LTD (RECEIVER & MANAGER APPOINTED) (IN LIQUIDATION) (ACN 075 030 447)	First respondent
S&D INTERNATIONAL PTY LTD (RECEIVER & MANAGER APPOINTED)(IN LIQUIDATION) (ACN 075 030 447)	Second respondent

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2012
DATE OF JUDGMENT:	23 March 2012
CASE MAY BE CITED AS:	Re MIG Property Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VSC 122

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WINDING UP – Appeal from decision of an Associate Justice to wind up the appellant and refuse application for adjournment of winding up application – Application to adjourn further hearing of an application to wind up the appellant for failing to comply with a statutory demand until hearing and determination of an appeal by the appellant – Statutory demand based on a debt due by the appellant to the second respondent – The debt due by the appellant challenged in an appeal to the Court of Appeal by the appellant – Principle in Adamopoulos v Olympic Airway applied – Consideration of where the interests of justice lie – No prejudice to creditor in granting the application – Prejudice to appellant – Application approved.

CORPORATIONS – Application for court approval to permit director to bring appeal on behalf of appellant – s 471A(2A)(d) Corporations Act 2001.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	P Tree SC with D Triaca	Mason Black Lawyers
For the Respondent	Mr MJ Galvin	Mills Oakley Lawyers

HIS HONOUR:

MIG Property Services Pty Ltd (MIG), is a company controlled by Mr Mond, an accountant. In September 2006, MIG took a transfer of a mortgage that had been granted by S&D International Pty Ltd (S&D) over a retail shopping premises in Footscray of which S&D was the registered proprietor.

In June 2007, S&D was placed in liquidation. Mr Handberg was appointed the liquidator.

In August 2007, MIG appointed Mr Vartelas as agent for the mortgagee in possession in respect of the Footscray property.

On 19 September 2007, the mortgaged Footscray property was sold by the agent in possession and a settlement of the sale took place on 19 October 2007. It was sold for $1,360,000.

In October and November 2007, Mr Mond transferred $410,000 of the settlement proceeds to Israel to be used in the acquisition of a house for himself and Mrs Mond. At or after settlement, no moneys were paid to S&D or to subsequent claimants. MIG claimed the right to retain all the moneys pending the determination of the respective claimants’ entitlement to those moneys despite all subsequent claimants agreeing moneys should be paid into court.

In August 2008, Mr Handberg, as the liquidator of S&D took…

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 MIG Property Services Pty Ltd

Details

AGLC: Re MIG Property Services Pty Ltd [2012] VSC 122
Case: [2012] VSC 122
Decision Date: 23 March 2012

CaseChat Overview and Summary

In the case of Re MIG Property Services Pty Ltd, the appellant sought to challenge a decision of an Associate Justice of the Federal Court to wind up the company following a statutory demand issued by the second respondent, who claimed a debt. The matter proceeded to the High Court on appeal from the Federal Court. The appellant argued that the statutory demand was invalid because the debt claimed was not owed. The court was required to determine whether the interests of justice required the application for adjournment to be approved and whether the appeal should be heard before the further hearing of the winding up application.

The court considered the principles established in Adamopoulos v Olympic Airways, which state that the court should consider where the interests of justice lie when deciding whether to grant an adjournment. The court found that there would be no prejudice to the creditor if the application for adjournment was granted, as the creditor would still have the opportunity to argue its case at the further hearing. The court also found that the appellant would suffer significant prejudice if the application for adjournment was refused, as it would be wound up before the appeal was heard. The court granted the application for adjournment, finding that the interests of justice required it.

The court also considered the application under section 471A(2A)(d) of the Corporations Act 2001 for approval to permit the director to bring the appeal on behalf of the appellant. The court found that the director was a suitable person to bring the appeal and approved the application. The court noted that the appellant had a valid argument that the debt claimed was not owed and that the interests of justice required the appeal to be heard before the further hearing of the winding up application.

The court made orders approving the application for adjournment and for the director to bring the appeal on behalf of the appellant. The further hearing of the winding up application was adjourned until the determination of the appeal.

Orders