Re Tomi-Sasha Holdings Pty Ltd (rec and mgr appt) (No 5)
[2021] VSC 307
•27 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST
S CI 2020 3224
| WAYNE ANDREW LESLIE CREWES and EILEEN FRANCES CREWES | First Plaintiff Second Plaintiff |
| v | |
| TOMI-SASHA HOLDINGS PTY LTD (ACN 076 376 308) (Receivers and Managers Appointed) (Administrators Appointed) & Ors (according to the Schedule) | First Defendant |
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JUDGE: | DELANY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 May 2021 |
DATE OF JUDGMENT: | 27 May 2021 |
CASE MAY BE CITED AS: | Re Tomi-Sasha Holdings Pty Ltd (rec and mgr appt) (No 5) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 307 |
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PRACTICE AND PROCEDURE – Application to vary undertaking – Whether enforcement of earlier undertaking unjust – Earlier breach of the same undertaking by the applicants not yet remedied – Applicants failed to discharge the onus that to refuse the variation would be unjust – Balance of convenience – Application refused – Gregorich v Khouri [2019] VSC 79 applied – Adam P Browne Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 cited – Mondous v Canzoneri [2018] VSC 194 cited.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr A Herskope | Kalus Kenny Intelex |
| For the Defendants | Mr D Clough | Burch & Co Lawyers Pty Ltd |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
The proceedings and the issues...................................................................................................... 3
Recent developments concerning undertakings.......................................................................... 8
Variation to permit payment of reasonable living expenses and legal costs....................... 11
Previous costs orders....................................................................................................................... 11
$250,000 proposed to be paid to Noble Family Investments Pty Ltd..................................... 13
The Malvern apartment purchase................................................................................................. 14
The purchase of the Armadale apartment and application of funds from the Hawaii property........................................................................................................................................................ 15
MIL shares and the proposed new claim in proceeding S ECI 2020 02306........................... 16
The Cape Schanck property........................................................................................................... 19
The applicable principles............................................................................................................... 20
The application of the principles.................................................................................................. 21
HIS HONOUR:
Introduction
Wayne Andrew Leslie Crewes and Eileen Frances Crewes have applied to vary undertakings given by them to the Court on 13 August 2020.
The proposed variation, if granted, would permit the release of $339,449.02 held in the trust account of their solicitors, Kalus Kenny Intelex (‘KKI’), part of the net proceeds of sale of a property in Hawaii previously owned by Mr and Mrs Crewes. The whole of the proceeds of sale, including those funds, were required to be paid to KKI’s trust account pursuant to the 13 August 2020 undertakings.
Mr and Mrs Crewes breached the undertakings given by them concerning the proceeds of sale of the Hawaii property. The proceeds were not paid to the KKI trust account as required but, as to a substantial portion of the available funds, were applied by Mr Crewes for his own and his family’s purposes. Orders were made on 19 May 2021 that are intended to result in the replenishment of moneys improperly applied so that the breach is remedied. Replenishment has not yet occurred.
The variation is sought for three purposes. First, as to $250,000, to permit part payment of secured creditors of Mr and Mrs Crewes, Noble Family Investments and Daniel Murphy (‘the Noble lenders’). Upon that payment being made, the Noble lenders will release 1.3 million Millennium Services Group Ltd (‘MIL’) shares, currently secured in their favour. That release will enable those shares to be used as security for a new finance facility to be made available to Wayne and Eileen Crewes Pty Ltd, as trustee of the Wayne and Eileen Crewes Family Trust (‘Family Trust’). The purpose of that finance facility is to enable the Family Trust to complete the purchase of a residential investment property in Malvern, Victoria.
Mr Crewes personally paid a $253,000 deposit toward the purchase of the Malvern property. It is contended that unless the variation is agreed to, the purchase will not be able to be completed and the deposit will be forfeited. Once purchased, that property is proposed to be resold.
The second purpose is to pay $50,000 to KKI on account of outstanding legal fees. The third purpose is to pay the balance of all funds remaining in the KKI trust account, $33,449.02, in reduction of personal credit card debts of Mr and Mrs Crewes.
The Court has power to release a party from an undertaking. In Gregorich v Khouri,[1] Kennedy J, as her Honour then was, summarised the applicable principles. Those principles are not in contest.
[1][2019] VSC 79 (‘Gregorich’).
Applying those principles, for the reasons that follow, I do not consider that the enforcement of the undertaking in its current terms would be unjust, such that the proposed variation for which Mr and Mrs Crewes contend should be allowed. Although new facts have come into existence since the undertaking was given, the new facts are largely the product either of decisions made by Mr and Mrs Crewes before the undertaking was given, or of actions taken by them or at their direction since the undertaking was given in what must be assumed to be full knowledge of the undertaking. I do not consider that Mr and Mrs Crewes have discharged the required onus so as to demonstrate a proper basis to vary the undertaking. I do not consider the balance of convenience favours the variation sought.
There are two exceptions. Those exceptions are agreed to by the defendants. The first exception, is to vary the undertaking to permit payment of Mr and Mrs Crewes’ reasonable living expenses. The second exception is to vary the undertaking to permit payment of Mr and Mrs Crewes’ reasonable legal expenses. I propose to vary the 13 August 2020 undertaking to permit payment of both those categories of expense from the proceeds of sale of the Hawaii property, $339.449.02 currently held in the KKI trust account. I do not intend that the variation that I propose to order will permit recourse for those purposes to either the further funds expected to be received from the United States Internal Revenue Service (‘IRS’) or from the proceeds of sale of the MIL shares the subject of the 19 May 2021 orders.
The proceedings and the issues
There are two related proceedings that concern Tomi-Sasha Holdings Pty Ltd (Receivers and Managers Appointed) (‘TSH’). The first in time is proceeding S ECI 2020 02306 commenced by Originating Process filed 25 May 2020. The second is this proceeding S ECI 2020 03224 commenced by Originating Process filed 7 August 2020.
There is some, but not a complete overlap between the parties to the two proceedings.
Mr and Mrs Crewes are the plaintiffs in this proceeding. TSH (in receivership) is the first defendant. Mr and Mrs Crewes are the directors of TSH and the holders of all of its issued shares.
NTM Super Holdings Pty Ltd (‘NTM’) is the third defendant. Simon Patrick Nelson, the receiver and manager appointed to TSH by NTM, is the fourth defendant. Mr Nelson was appointed by NTM on 18 May 2020. Mr and Mrs Crewes dispute the validity of Mr Nelson’s appointment.
The substantive relief claimed by Mr and Mrs Crewes, set out in the 25 September 2020 points of claim, includes:
(a)an order pursuant to s 418A of the Corporations Act 2001 (Cth) (‘the Act’) declaring the appointment by NTM of Mr Nelson as receiver and manager of TSH to be invalid;
(b)a declaration that TSH entered into a Loan and Charge Agreement (‘LCA’) dated 19 December 2017 between NTM, TSH and Mr and Mrs Crewes; and a General Security Agreement (‘GSA’) dated December 2017 between NTM and TSH in its own right and not as trustee of the National Property Trust (‘the Trust’).
(c)a declaration that the ‘secured or security property’ (as defined in the GSA) does not include the assets of the Trust; and
(d)a declaration that any security interest which NTM had in any of the assets of the Trust has vested pursuant to s 267 of the Personal Property Securities Act 2009 (Cth) (‘PPSA’).
TSH, under the control of Mr Nelson, and NTM, are the plaintiffs in proceeding S ECI 2020 02306. Mr and Mrs Crewes are the first and second defendants. The fourth and fifth defendants are the daughters of Mr and Mrs Crewes, after whom TSH is named; Sasha Elma Mort, and Tomi Tregent-Crewes. The sixth defendant is 3 Stanhope Street Pty Ltd (‘Stanhope Street’), appointed as trustee of the Trust by deed of appointment dated 27 May 2020.[2]
[2]Plaintiffs, Affidavit of Wayne Andrew Leslie Crewes, dated 7 August 2020, Exhibit “WC-5”.
The Trust of which Stanhope Street is now the trustee is a discretionary trust established by deed dated 16 November 1996.[3] The appointor is Mrs Crewes. The original trustee was TSH. The primary beneficiaries are Mr and Mrs Crewes.
[3]Ibid, Exhibit “WC-3”.
In proceeding S ECI 2020 02306, NTM claims repayment of a loan alleged to be overdue for payment against TSH. NTM and Mr Nelson allege that the GSA extends not only as security over the assets of TSH, but also as security over the assets of the Trust. TSH denies liability to NTM. NTM makes claims against Mr and Mrs Crewes as guarantors of TSH’s indebtedness to NTM. Mr and Mrs Crewes deny liability on the guarantee.
In an affidavit sworn in opposition to the variation application, Mr Burch, solicitor for NTM, set out the total amounts said to be owing by TSH and alleged to be guaranteed by Mr and Mrs Crewes:
(a)$2,390,017.99 in principal and accrued interest;
(b)$240,282.65 in legal costs incurred by Burch + Co Lawyers;
(c)$84,022.00 in Counsel fees whilst Burch + Co Lawyers have been engaged;
(d)$7,292.06 in associated expenses whilst Burch + Co Lawyers have been engaged; and
(e)$923,240.83 in Receiver’s fees and costs, legal fees incurred prior to the engagement of Burch + Co Lawyers and other disbursements,
totalling $3,644,855.53.
In addition to the monetary claims, various allegations are made in the current amended statement of claim in proceeding S ECI 2021 02306,[4] concerning the validity of dealings by Mr and Mrs Crewes and interests associated with them in shares in MIL:
[4]The current Amended Statement of Claim in proceeding S ECI 2020 02306 was filed on 19 February 2021.
a)On 25 January 2018, 750,000 shares in MIL were sold on-market. It is alleged that the sale and the disposition of the proceeds by TSH was in breach of director’s duties, and constituted an improper use of position to gain advantage (‘First Transfer’).
b)Between 10 September and 4 October 2018, 40,000 shares in MIL were transferred to Mr and Mrs Crewes as trustees for the W and E Crewes Superannuation Fund (‘WECSF’) (‘Second Transfer’).
c)On 7 March 2019, 519,516 shares in MIL were transferred to Mr and Mrs Crewes as trustees for the WECSF (‘Third Transfer’).
d)Between 7 March and 7 October 2019, 2.5 million shares in MIL were transferred by TSH to Mr and Mrs Crewes as trustees for the WECSF (‘Fourth Transfer’).
e)On or after 19 May 2020, 662,606 shares in MIL were transferred to Ms Mort at an undervalue of $133,521 (market value of $240,000) (‘Fifth Transfer’).
f)On or after 19 May 2020, 662,607 shares in MIL were transferred to Ms Tregent-Crewes at an undervalue of $133,521 (market value $240,000) (‘Sixth Transfer’).
g)In June 2020, Ms Mort and Ms Tregent-Crewes transferred shares, which were subject of the Fifth and Sixth Transfers, to Stanhope Street (‘Seventh and Eighth Transfers’).
The events giving rise to the two proceedings began in 2017. NTM and Mr Nelson allege that in around December 2017, pursuant to the LCA and the GSA, NTM lent $1,400,000 to TSH. Pursuant to the LCA, the Loan was repayable (together with interest) on 1 July 2018, or earlier by mutual agreement.
Mr Crewes has previously given evidence that a third party, Mr Rogers, told him he had organised a $1.3 million loan to allow Mr Crewes to purchase a property in Hawaii. The borrower was to be TSH. The loan was to be guaranteed by Mr and Mrs Crewes. The loan was to be secured by a charge or unregistered caveat over Mr and Mrs Crewes’ house at 12 The Cups Drive, Cape Schanck.[5]
[5]Plaintiffs, Affidavit of Wayne Andrew Leslie Crewes, dated 7 August 2020, [18].
At about the time of the December 2017 transactions, a caveat was lodged by NTM on the title to the property at Cape Schanck.
On 19 December 2017, NTM registered security on the PPSR over ‘All present and after-acquired property – No exceptions’ of TSH.[6] The registration was against TSH’s Australian Company Number. The Trust has its own ABN number, against which the GSA is not recorded as registered on the PPSR.
[6]Ibid, [40].
In 2017 the assets of the Trust included 6.9 million shares in MIL, an ASX listed company. If the GSA extended to the Trust assets, at the time it was registered on the PPSR, it extended to those shares and NTM is properly entitled to security over those shares.
On 13 August 2020, Mr and Mrs Crewes gave undertakings to the Court in the terms set out below:
A.The plaintiffs will abide by any order which this Court might make as to damages, in case this Court shall be of the opinion that any person shall have sustained any loss by reason of this order, which the party giving the undertaking ought to pay.
B.The plaintiffs, in their capacity as directors and shareholder of 3 Stanhope St Pty Ltd as the trustee for the National Property Trust, will not take any step to cause 3 Stanhope St Pty Ltd to transfer, encumber or otherwise deal with the assets of the National Property Trust without first giving 7 days written notice of any intention to do so, which written notice shall be provided to Williams Winter, solicitors for the second defendants.
C.The plaintiffs, in their capacity as directors and shareholder of 3 Stanhope St Pty Ltd as the trustee for the National Property Trust, will not take any step to cause 3 Stanhope St Pty Ltd to be removed as trustee of the National Property Trust until further order.
The second plaintiff, as the appointor of the National Property Trust, will not take any step to remove 3 Stanhope St Pty Ltd as the trustee of the National Property Trust, or appoint any other person or entity as trustee for the National Property Trust until further order.
D.The plaintiffs will not take any step to remove themselves as directors of 3 Stanhope St Pty Ltd, or to appoint any other person as director of 3 Stanhope St Pty Ltd until further order.
E.At the settlement of the sale of the property situated at Unit 18, Alani Loop, Kohanaiki, Hawaii the plaintiffs will pay the net proceeds of the sale into the trust account of KKI Lawyers to be held until further order, and further, the plaintiffs will not direct KKI Lawyers to transfer the net proceeds of sale to any person or entity until further order.
The undertakings were given in the context of orders made by consent obtained on an application by Mr and Mrs Crewes to restrain administrators appointed to TSH from taking action.
On 26 August 2020 Mr and Mrs Crewes filed an amended application in this proceeding seeking the removal of Mr Nelson as receiver and manager of TSH. The application for removal was based on alleged misconduct by Mr Nelson contrary to s 434A of the Act.
On 16 September 2020, the Court found misconduct in relation to a letter sent by Mr Nelson on 14 August 2020. The Court declined to order Mr Nelson’s removal.[7]
[7]Re Tomi-Sasha Holdings Pty Ltd (rec and mgr appt)(adm appt) [2020] VSC 595, [164] – [168].
On 17 September 2020, Mr and Mrs Crewes, in their capacity as trustees for the WECSF gave further undertakings to the Court. They undertook not to take any step to cause WECSF to transfer, encumber or otherwise deal with certain MIL shares without first giving 7 days written notice of any intention to do so. 2,246,360 MIL shares are currently the subject of that undertaking.[8]
[8]Plaintiffs, Affidavit of Michael Jonathan Kenny, dated 12 May 2021, [17].
On 18 September 2020, Mr and Mrs Crewes’ costs of the misconduct and removal application were ordered to be paid by Mr Nelson on a standard basis. Mr and Mrs Crewes’ costs of a related application for an injunction were ordered to be paid by NTM and by Mr Nelson.
Recent developments concerning undertakings
On 1 April 2021, the solicitor acting on behalf of NTM and Mr Nelson filed an affidavit in which he referred to the sale of the Hawaii property for US$2,640,000 in around October 2020. He referred to learning of the sale in early 2021 and to correspondence from February 2021, with the solicitor for Mr and Mrs Crewes, in which details were sought concerning the proceeds of sale. On 24 March 2021, Mr Kenny advised that US$67,961.88 had been received into the trust account of KKI, following the sale.
On 19 April 2021, Mr Crewes made an affidavit in which he admitted his breach of the 13 August 2020 undertaking E concerning the proceeds of sale of the Hawaii property. In that affidavit, he admitted that instructions previously given by him to his solicitor, Mr Kenny, about what had happened to the surplus of funds following the sale of the Hawaii property, information that in accordance with his instructions Mr Kenny passed on to the solicitor acting for NTM and Mr Nelson, were not correct.
Mr Crewes gave evidence that by early April 2021, he knew that he could no longer maintain the fiction about the surplus from the sale of the Hawaii property or what had become of it. He said he was deeply embarrassed and knew that his solicitor, Mr Kenny, was being pressured for answers by the solicitor acting on behalf of NTM.
Mr Crewes said that the pressure and cost of the litigation and obligations to others, including to his daughter, had got the better of him. He said that he understood the seriousness of what had happened and that he knew he should have approached the Court to permit him to deal with any of the proceeds of sale. He said that he would need to transfer $284,824.93 to his solicitor’s trust account to replenish the balance of the surplus. He gave evidence that the only way he could raise the required amount was to have the Family Trust sell shares in MIL. He said the Family Trust was currently prevented from doing so due to the MIL Code of Conduct for transactions in securities.
On 19 April 2021 Mrs Crewes made an affidavit in which she said she was completely unaware of any of the facts and matters contained in the affidavit of her husband concerning his dealings with the net proceeds of sale of the property in Hawaii. It is her evidence she left details of all ‘our finances, movements of funds, and the sale of the Hawaiian property, and dealing with the proceeds of sale, and complying with the undertaking, entirely to [my] husband’. That explanation is unsatisfactory. Like her husband, Mrs Crewes personally gave and was bound to adhere to the undertaking concerning the Hawaii property.
On 13 May 2021, the Court made orders requiring payment to KKI’s trust account of moneys retained from the proceeds of sale of the Hawaii property by the United States IRS upon release of those funds.
On 19 May 2021 orders were made for the sale of MIL shares by Mr and Mrs Crewes as trustees of the WECSF and by Wayne and Eileen Crewes Pty Ltd as trustee of the Family Trust. The orders required the sale of such shares in MIL as necessary to realise $298,824.93 and for the payment of that amount to the KKI trust account. $298,824.93 is the shortfall in the KKI trust account in funds from the sale of the Hawaii property. The 19 May 2021 orders were made so as to compel those parties, controlled by Mr and Mrs Crewes, to make good the missing proceeds of sale.
For that purpose only, and only so as to permit sale of shares sufficient to realise $298,824.93, Mr and Mrs Crewes were released from the undertaking they made to the Court on 17 September 2020 concerning 2,246,360 MIL shares.
On the morning of the 19 May 2021 hearing, an affidavit was sworn by Mr Crewes. In that affidavit, Mr Crewes said he sought a complete discharge of the undertaking concerning the Hawaii property. Mrs Crewes has not made an affidavit in support of the application.
That application was heard on 24 May 2021. The orders sought on behalf of Mr and Mrs Crewes at the hearing are more limited in scope than foreshadowed in Mr Crewes’ 19 May 2021 affidavit. The orders are as follows:
1.The Undertaking recorded in paragraph E of Other Matters in the Order made by Delany J on 13 August 2020 (the Undertaking) be varied to permit the payment out of the sum of $339,449.02 currently held in the trust account of Kalus Kenny Intelex (“KKI”) as follows:
(a)To pay $250,000 to Noble Family Investments Pty Ltd and Daniel Murphy (the Noble lenders) in part repayment of the debt referred to in paragraph 18 of the affidavit of Michael Jonathan Kenny sworn on 12 May, 2021 and paragraph 33 of the affidavit of Wayne Leslie Crewes sworn on 19 May 2021
(b)To pay $50,000 to KKI on account of outstanding legal fees owing by the plaintiffs to KKI; and
(c)To pay the balance in reduction of the credit card debts that are set out in paragraph 27 of the affidavit of Wayne Leslie Crewes sworn on 19 May 2021.
The defendants provided draft orders. Those orders also provide that the undertaking should be varied to permit the payment out of the sum of $339,449.02, but not so as to permit the application of those funds in the manner for which Mr and Mrs Crewes contend.
The defendants’ proposed orders would permit the payment out of $339,449.02 for the following purposes:
(a)Payment of the costs orders made on 19 March 2021 (in S ECI 2020 02306) and 13 May 2021 and 19 May 2021 (in S ECI 2020 03224).
(b)Payment of the Crewes parties’ reasonable living expenses and their own legal fees.
(c)Reasonable provision for indemnifying Mrs Crewes against adverse costs orders, pursuant to the undertaking made in this proceeding on 21 August 2020 as recorded in Other Matters in the Order made that day.
Variation to permit payment of reasonable living expenses and legal costs
There is no dispute between the parties that it is appropriate the undertaking be varied to permit money held in the trust account of KKI to be applied towards payment of Mr and Mrs Crewes’ own legal fees.
The evidence of Mr Crewes is that legal fees of $24,762 are currently owing for outstanding invoices for counsel and solicitors’ fees. In addition, there is about $49,000 in unbilled solicitors and counsels’ fees, together with the costs of the current application.[9]
[9]Plaintiffs, Affidavit of Wayne Andrew Leslie Crewes, dated 19 May 2021, [18]; Plaintiffs, Affidavit of Michael Jonathan Kenny, dated 22 May 2021, [12].
The defendants propose that the undertaking be varied to permit payment of Mr and Mrs Crewes’ reasonable living expenses. The orders for which Mr and Mr Crewes contend propose the application of $39,449.02 in reduction of credit card debts.
The affidavit of Mr Crewes dated 19 May 2021 lists credit card debts of $416,148.41. Those debts have accrued on seven different credit cards held individually by Mr and Mrs Crewes. Three of the cards have amounts owing above their credit limits, the remaining four have balances very close to their limits.
Counsel for the defendants accepted that the defendants’ proposed variation, which provides for payment of the parties’ own ‘reasonable living expenses’ would encompass the ability on the part of Mr and Mrs Crewes to service the interest on those credit cards.
Previous costs orders
The Court has previously made costs orders in favour of NTM and TSH (in receivership) on 19 March 2021 (‘Costs Order 1’), 13 May 2021 (‘Costs Order 2’) and 20 May 2021 (‘Costs Order 3’) (together ‘the Costs Orders’). In each case the orders required that such costs be paid forthwith. Mr Burch has calculated the total costs, which are not agreed, and which have not been taxed, as follows:
(a)Cost Order 1:
(i)$22,367.00 in Counsel’s fees; and
(ii)$16,746.20 in solicitor’s fees.
(b)Cost Order 2:
(i)$26,439.05 in Counsel’s fees; and
(ii)$20,372.69 in solicitor’s fees.
(c)Cost Order 3:
(i)$4,086.94 in Counsel’s fees; and
(ii)$7,425.00 in solicitor’s fees.
Costs Orders 2 and 3 are solely against Mr and Mrs Crewes. Costs Order 1 was made against Mr and Mrs Crewes and also against Sasha Elma Mort, Tomi Tregent-Crewes, and Stanhope Street.
During the hearing, counsel for Mr and Mrs Crewes drew attention to the outstanding costs orders in favour of Mr and Mrs Crewes made on 18 September 2020. It was submitted that given those costs orders in favour of Mr and Mrs Crewes, it was not appropriate to vary the undertakings to require payment of the amounts owing pursuant to the Costs Orders out of the funds in the KKI trust account. There is no evidence as to the amount of the costs required to be paid to Mr and Mrs Crewes. The majority of the costs are those ordered to be paid by Mr Nelson. The 18 September 2020 costs orders required payment forthwith.
Although there is not a set-off available in the case of costs ordered to be paid by Mr Nelson against amounts required to be paid pursuant to the Costs Orders, as those costs have not been quantified, it is not appropriate to vary the undertaking so that they are paid now from the funds in trust. It is also not appropriate to make the defendants’ proposed order regarding an indemnity in favour of Mrs Crewes against adverse costs orders.
$250,000 proposed to be paid to Noble Family Investments Pty Ltd
The real contest between the parties was whether the Court should agree to vary the undertaking so as to permit the payment of $250,000 to the Noble lenders, in part repayment of a debt to those parties.
Mr and Mrs Crewes seek a variation to permit payment of $250,000, part of the $339,449.02 in the yet to be replenished trust account of KKI, to the Noble lenders. That is so that the Noble lenders will, in return, partially release security which those lenders hold over 2.2 million MIL shares.
On 21 May 2021, Mr Noble informed Mr Crewes that the Noble lenders would agree to release 1.3 million MIL shares if $250,000 was paid to reduce the debt. The Noble lenders debt is $400,000, due to be repaid in full on 20 June 2021.
The reason Mr Crewes seeks the release of security over 1.3 million MIL shares is that he has arranged finance to settle the purchase of an apartment in Malvern with settlement of that purchase originally due to be effected on 21 May 2021. Settlement has been extended to Monday, 31 May 2021.[10]
[10]The contract of sale extract is at Plaintiffs, Affidavit of Wayne Andrew Leslie Crewes, dated 19 May 2021, Exhibit “WC-25”.
The argument advanced on behalf of Mr Crewes is that unless the undertaking is varied and an order permitting part repayment to Noble lenders is made, so as to release 1.3 million MIL shares, the Family Trust will not be able to settle the purchase of the Malvern apartment. It is his evidence that if this occurs, he will lose the deposit of $235,000 that he paid when he signed the contract to buy the apartment.
The defendants submit that if an order is made permitting the sum of $250,000 to be paid to the Noble lenders, the following will occur:
(a)1.3 million MIL shares currently standing as part security for a debt owing to the Noble lenders will be released from that security.
(b)A new charge will be created over the MIL shares owned by Wayne and Eileen Crewes Pty Ltd on trust for the Family Trust in favour of KOA Capital.[11] KOA Capital is the proposed financier of the Malvern purchase.
(c)The effect of those transactions will be to:
(i)afford priority in favour of KOA Capital over those shares in circumstances where TSH and NTM propose to claim an entitlement to those shares in proceeding S ECI 2020 02306; and
(ii)reduce assets which would otherwise become available upon the discharge of the Noble lenders’ security to satisfy any judgment obtained by NTM against TSH, it being the contention of NTM that the shares in question are properly the property of TSH.
[11]Plaintiffs, Affidavit of Wayne Andrew Leslie Crewes, dated 19 May 2021, [30]-[31]; Plaintiffs, Affidavit of Michael Jonathan Kenny, dated 22 May 2021, [5], Exhibit “MJK-13”.
The Malvern apartment purchase
On 22 July 2019, Mr Crewes or nominee, entered into an off the plan contract for the purchase of an apartment in Malvern for a purchase price of $2,350,000.
On 28 February 2021 Mr Crewes nominated Wayne and Eileen Crewes Pty Ltd as trustee of the Family Trust as purchaser of the property.
The Family Trust is proposing to borrow 90% of the purchase price of the Malvern apartment in order to complete the purchase. The proposed lender, KOA Capital, requires a first mortgage over the apartment. As at 19 May 2021, it required a second mortgage and a charge over 2.2 million MIL shares currently charged in favour of the Noble lenders.[12] On 21 May 2021, KOA Capital informed Mr Crewes that it would be satisfied with security over 1.3 million MIL shares, together with a first and second mortgage over the Malvern apartment.
[12]Plaintiffs, Affidavit of Wayne Andrew Leslie Crewes, dated 19 May 2021, [30]-[31].
On 19 May 2020, Mr Crewes gave evidence that his brother, Stephen Crewes, had agreed to provide 500,000 of his MIL shares to secure the balance of the Noble lenders’ loan to allow the apartment purchase to go ahead.[13] With the recent change in position on the part of KOA Capital, those shares will not need to be made available if the variation to the 13 August 2020 undertaking is allowed. There is no evidence of the number of MIL shares held by Stephen Crewes or as to his willingness or otherwise to make more than 500,000 such shares available to assist his brother and the Family Trust.
[13]Ibid, [34].
The defendants’ submissions draw attention to the interest rate that KOA Capital will charge on the second mortgage loan. Interest at 3.34% per month until KOA Capital obtains a first ranking charge over the remaining 900,000 MIL shares presently subject to the Noble lenders’ security. It is anticipated by Mr Crewes in his affidavit that the remaining 900,000 secured shares will be released by the Noble lenders on 20 June 2021 at which time they will be encumbered in favour of KOA Capital and the interest rate on the second mortgage loan will reduce to 2.5% per month.[14]
[14]Plaintiffs, Affidavit of Michael Jonathan Kenny, dated 22 May 2021, Exhibit “MJK-14”.
The purchase of the Armadale apartment and application of funds from the Hawaii property
On 1 February 2020, Tomi Tregent-Crewes, and/or nominee, entered into a contract for the purchase of an apartment in Armadale for the sum of $1.395 million.[15]
[15]Plaintiffs, Affidavit of Wayne Andrew Leslie Crewes, dated 19 April 2021, Exhibit “WC-11”.
In his affidavit confessing to a series of actions in breach of the undertaking, Mr Crewes referred to the Armadale apartment. He said that he had paid an initial deposit of $10,000. He disclosed that on 18 November 2020, he transferred $129,524.35 to Marshall White Real Estate from funds in his ANZ Bank account, being part of the proceeds of the Hawaii property. The funds transferred represented the balance of the deposit payable for the purchase of that apartment.[16]
[16]Ibid, [23].
There is no evidence about how settlement of the purchase of the Armadale apartment, which so far has been wholly funded by Mr Crewes, is proposed to be funded or by whom.
Disclosing other breaches, Mr Crewes said he had transferred $386,653.67 from the proceeds of sale of the Hawaii property to his ANZ Bank account in Australia on 17 November 2020. On 18 November 2020, he applied $230,000 from that account to repay a loan of $275,000 made by Noble Family Investments Pty Ltd to Wayne and Eileen Crewes Pty Ltd. On 9 October 2020, he used $66,280 to pay a GST liability owed by the Trust.
MIL shares and the proposed new claim in proceeding S ECI 2020 02306
An affidavit of Mr Kenny helpfully sets out the position concerning MIL shares held by the Family Trust:
(a)the Family Trust holds 4,590,000 MIL shares;
(b)2,246,360 of those shares are the subject to the undertaking by Mr and Mrs Crewes in their capacity as trustees for the WECSF recorded in paragraph C of Other Matters in the order made on 17 September 2020 that they will not take any step to cause the WECSF to transfer, encumber or otherwise deal with such shares;
(c)2,300,000 shares have been charged in favour of the Noble lenders to secure a loan to pay legal fees; and
(d)43,640 shares remain unencumbered.
There is evidence that on 20 May 2021 the market price of MIL shares was 63 cents, but that the shares are thinly traded.
In submissions filed on 18 May 2021 relating to the breach of the undertaking, NTM and Mr Nelson urged the Court to:
(a)lift paragraph A(c) of the 17 September 2020 undertaking for the sole purpose of enabling shares to be sold to a value of $298,824.93 to replenish the Hawaii undertaking fund; and
(b)replace the 17 September 2020 undertaking to ensure the 2,300,000 encumbered MIL shares that are expected to be unencumbered on 20 June 2021, with the repayment of the Noble lenders debt, do not become subject to any new encumbrance and are not transferred or otherwise dealt with.
The Court accepted the first submission on behalf of NTM and Mr Nelson and made orders on 19 May 2021 concerning the lifting of the undertaking for the limited purposes proposed. It did not make the orders sought in the second submission. At that time it was considered premature to do so.
On 11 May 2021, TSH, under the control of its receiver, and NTM, served a proposed second further amended statement of claim in proceeding S ECI 2020 02306. On 13 May 2021 the application to amend, in the event that any of the defendants oppose the proposed amended pleading, was adjourned to 2 June 2021.
The defendants have not signified their consent to the proposed amendments. The amendments, if granted, allege that all of the MIL shares currently held by the Family Trust were secured by the GSA in favour of NTM. In substance, those shares were transferred to the WECSF and then to the Family Trust.
In short, by the proposed amendments, NTM claims the 2,200,000 shares currently secured in favour of the Noble lenders are shares over which it is entitled to a security interest.
The detailed allegations the subject of the proposed amendment include that –
(i)between 18 May 2018 and 22 March 2019 (the period of the Second Transfer) TSH sold 1,781,984 of its shares in MIL on market;[17]
(ii)the sale of these shares was a breach of the GSA and an event of default under the GSA;[18]
(iii)the proceeds of sale continued in the collateral under the GSA within the meaning of s 32(1) of the PPSA and remain subject to the GSA;[19]
(iv)WECSF received funds from the sale of the shares to purchase 2,151,268 shares in MIL at depressed prices during the period of the Second Transfer; prices depressed due to the sale of shares by TSH;[20]
(v)further, during the period of the Second Transfer, TSH transferred $1,825,228.43 from its bank account for the purchase on market of 2,487,4343 shares in MIL[21] (the WECSF shares[22]);
(vi)Mr and Mrs Crewes, each in their own right and as trustee of the WECSF, were not authorised by NTM or TSH to use the WECSF funds for the purpose of purchasing the WECSF shares. Their actions were in breach of duties owed to TSH;[23]
(vii)on 28 May 2020 Mr and Mrs Crewes registered the transfer of 4,500,000 shares in MIL that they held on trust for WECSF to Wayne and Eileen Crewes Pty Ltd;[24]
(viii)by facilitating the transfer of those shares, Mr and Mrs Crewes acted in breach of duties owed to TSH.[25]
[17]Plaintiffs, Proposed Further Amended Statement of Claim, dated 11 May 2021 (‘PFASOC’), [35].
[18]Ibid, [36].
[19]Ibid, [36A].
[20]Ibid, particulars to [40].
[21]Ibid, [45A].
[22]Note the plea includes in this definition, in addition to MIL shares in other companies.
[23]Ibid, [45B]-[45E].
[24]Ibid, [93F].
[25]Ibid, [93M].
An affidavit of Mr Nelson dated 24 May 2021 in opposition to the variation application contains detailed evidence directed to verifying the matters the subject of the proposed amended pleading. Amongst other things, Mr Nelson gives evidence as follows:
(a)In the 2019 MIL Annual Report, by October 2019 the WECSF held 4,592,837 MIL ordinary shares.
(b)On or about 28 May 2020, Wayne and Eileen Crewes registered a transfer of 4,500,000 ordinary shares in MIL that they held on trust for the WECSF to Wayne and Eileen Crewes Pty Ltd (‘WECPL’) (‘First WECPL Transfer’).
(c)The shares that are currently held as security by the Noble lenders and are being offered by Mr Crewes as security for the loan from KOA Capital form part of the shares transferred under the First WECPL Transfer.
(d)As set out in the 2020 MIL Annual Report, by October 2020 Wayne and Eileen Crewes Pty Ltd held 4,340,000 MIL ordinary shares. WECSF is not listed in the top twenty shareholders in the 2020 MIL Annual Report due to the First WECPL Transfer.
(e)On about 15 July 2020 WECPL registered the transfer of 3,675,000 of its shares in MIL to itself as trustee of the Family Trust.
The Cape Schanck property
Mr and Mrs Crewes are the registered proprietors of 12 The Cups Drive, Cape Schanck.
On 12 May 2021, that property was valued by Mr Cramer and Mr Kilby of Charter Keck Cramer at $7.5 million. The first mortgage over the property secures a debt of $2,894,312.28. The interest rate on the first mortgage debt is 6.29%.
The caveat lodged on behalf of NTM acts to prevent dealings in the land with an equity as at 12 May 2021 based on the Charter Keck Cramer valuation of $4,605,687.82.
Counsel for Mr and Mrs Crewes submit that having regard to the total debt claim, $3,644,855.53, the quantification of which is disputed, the equity in the Cape Schanck property is more than sufficient to warrant the Court granting the variation sought.
The very substantial equity in the Cape Schanck property protected by the caveat would be available to NTM if it were successful in its claims against Mr and Mrs Crewes on the guarantees. While that is the case, Mr and Mrs Crewes dispute they are bound by the guarantees. It is feasible that NTM will succeed in its claims against TSH for $3,644,855.53, but will not succeed on the guarantee claims. The equity in the Cape Schanck property is irrelevant to assets potentially available to NTM in the claims it brings against TSH and against parties other than Mr and Mrs Crewes personally.
The applicable principles
As earlier noted, in Gregorich[26] the Court identified the applicable principles, doing so by reference to earlier authority.
[26][2019] VSC 79.
In Adam P Browne Male Fashions Pty Ltd v Philip Morris Inc,[27] Gibbs CJ, Aickin, Wilson and Brennan JJ stated as follows:
… Considerable argument was directed to the question whether a court has power, otherwise than in the case of mistake operative at the time of giving it to release a party from an undertaking, at least in the absence of the consent of the other party. But in our opinion a court undoubtedly has such a power. Just as an interlocutory injunction continues “until further order”, so must an interlocutory order based on an undertaking. A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust.[28]
[27][1981] HCA 39; (1981) 148 CLR 170 (‘Adam P Browne’).
[28]Ibid, 177 (citations omitted).
In Hall v Mercury Information Technology (South Australia) Pty Ltd,[29] after referring to the decision of the High Court in Adam P Browne,[30] Stone J observed:
…the onus of proof is on the party seeking a release or variation of such an undertaking to establish by evidence that new facts have been discovered or come into existence that would render the continued enforcement of the undertaking unjust.[31]
[29][2003] FCA 645.
[30][1981] HCA 39; (1981) 148 CLR 170.
[31][2003] FCA 645, [6].
In Mondous v Canzoneri,[32] Digby J expressed his view that the Court’s discretion in respect of undertakings is not so rigidly confined. His Honour was of the opinion that the Court’s equitable jurisdiction should not be unaccommodating of circumstances that do not neatly reflect what has been decided previously in relation to an application to vary or discharge undertakings:
[18] … Accordingly, it remains open to the Court to reason the enforcement of the undertaking would be unjust in the circumstances and to vary the undertaking on that basis. In this regard I do not consider there to be any rigid or confined rule or test in respect of the exercise of the court’s discretion to vary or permit the withdrawal of an undertaking.
[19] The High Court has also observed that the “balance of convenience” is a material consideration conditioned by the nature of the undertaking and the conduct to which it is directed, as well as the circumstances in which it is given.[33][34]
[32][2018] VSC 194.
[33](1981) 148 CLR 170, 180.
As the authorities make plain, the Court has jurisdiction to vary the undertaking previously given by Mr and Mrs Crewes. It will do so if they, as the applicants for variation, discharge the onus of persuading the Court that its continued enforcement would be unjust. The existence of new facts which have been discovered or have come into existence, and which render the continued enforcement of the undertaking unjust are not the only circumstances in which the Court may vary an undertaking previously given. However, if the Court is to vary an existing undertaking, it must be persuaded by evidence that circumstances exist that would render the enforcement of the existing undertaking unjust. The balance of convenience and the circumstances in which the undertaking was given are relevant considerations.
The application of the principles
There is no evidence of the precise circumstances in which Mr and Mrs Crewes gave the undertaking which they now seek to have varied. What is apparent is that the undertakings were given as part of the resolution of a contested application on their part to remove the administrators from TSH.
It is not suggested the undertakings sought to be varied were given as a result of a mistake on the part of Mr and Mrs Crewes or either of them.
The facts concerning the Malvern apartment are not new. At the time Mr and Mrs Crewes gave the 13 August 2020 undertakings, Mr Crewes had contracted to purchase the Malvern apartment. He had paid the deposit of $235,000 on 22 July 2019; he now seeks to protect that deposit, relying upon the proposed variation to do so. Mr Crewes must be taken to have been aware of his contractual obligations and of the risk that the giving of the undertakings might pose in the future for his ability to complete the contract of sale as required and the risk that the deposit previously paid might be lost.
When Mr and Mrs Crewes as the directors of Wayne and Eileen Crewes Pty Ltd, nominated that company in its capacity as trustee of the Family Trust as the purchaser of the Malvern property in February 2021, the undertakings which they now seek to vary, were in place. Both Mr and Mrs Crewes must be taken to have been aware of their contractual obligations upon nomination to complete the contract. They must be taken to have been aware of the risk that undertakings given both in August and September 2020 might pose in the future for the ability of the Family Trust to complete the contract. They made no application prior to the nomination to seek to vary the undertakings.
The evidence in support of the application includes details of credit card debts. Given the number of credit cards to which the debts relate, the level of individual debts compared to the maximum permitted on each card and the combined debts which currently exceed $416,000, together with other evidence of the financial circumstances of Mr and Mrs Crewes, it cannot be suggested and it was not submitted, that the financial difficulties in which Mr and Mrs Crewes now find themselves are new or as a result of very recent circumstances or developments.
The contract for the Armadale property, of which Tomi Tregent-Crewes or nominee is the purchaser, was signed on 1 February 2020. Mr Crewes paid the initial deposit of $10,000 for the purchase of the apartment for his daughter Tomi. The contract, a redacted copy of which forms part of the evidence, provided for the balance of the deposit, a further $129,500, to be paid on 22 March 2020. Mr Crewes transferred $129,524.35 to Marshall White Real Estate on 18 November 2020. He did so in clear breach of the undertaking. He had previously paid only a $10,000 deposit on that property. It seems that, rather than lose $10,000, he deliberately elected to breach the undertaking.
The remaining dealings in 2020 via the ANZ Bank account concerning the proceeds of sale of the Hawaii property were also in breach of the undertaking that he and Mrs Crewes now seek to vary. Money was used to pay Noble Family Investments Pty Ltd and the Australian Taxation Office.
Mrs Crewes also personally gave each of the 13 August 2020 undertakings. Her explanation that she left financial matters to her husband concerning the proceeds of sale of the Hawaii property reflects a lack of any regard for the serious nature of the undertakings given personally by her to the Court. Together with her husband, she was the joint owner of the Hawaii property. She was required by the undertakings to personally ensure that the proceeds of sale were paid to KKI’s trust account. It appears she took no steps whatsoever to do so.
The funding arrangements concerning the Malvern property purchase can only be described as at the commercial margins. The first mortgage is for a term of 12 months. The term of the second mortgage, which most recently has as its proposed collateral security, 1.3 million MIL shares, is six months only. The second mortgage exhibited refers to a loan of $745,000 for six months at a lower rate of 30% and a higher rate of 60%. The summary of the proposed application of loan proceeds from the loans to be secured by both the first and second mortgage and by security over 1.3 million MIL shares shows the total amount required to complete the purchase, including stamp duty, as $2,248,000 of which the deposit of $235,000 only has been paid. There is a cash shortfall at settlement required to be made up of $10,719. The evidence of Mr Crewes does not explain where that amount is to come from. Mr Crewes says that he proposes to sell the apartment as soon as possible. The apartment was valued in April 2021 at $2.5 million. In his affidavit he says that following the sale he proposes to apply the net proceeds to repay as much as possible off a debt of $400,000 and interest owing to Dallmont Pty Ltd, a loan which was advanced by a friend, Kevin Bamford. There are no details given of this debt, and whether it is already due to be repaid.
If the proposed variation is allowed, $250,000 will be applied to reduce a different debt, a $400,000 debt owed to the Noble lenders. That debt is currently secured over 2.2 million MIL shares. If the variation is allowed, that debt will be reduced to a debt of $150,000. The whole of that debt is due to be repaid on 20 June 2021.
While not part of the orders sought on this application, in his affidavit of 19 May 2021 Mr Crewes states as follows:
38.Subject to the Undertaking being discharged, upon receipt from the IRS of the balance of the Hawaii funds of about $250,000, that amount would be applied as follows:
(a)to pay further anticipated legal costs of about $40,000 to be incurred in relation to the application for the discharge of the Undertaking, and resisting the summary judgment/discovery application in the County Court Proceeding;
(b)To repay Noble Family Investments $150,000 plus interest to repay the balance of the $400,000 loan; and
(c)to repay further credit card anticipated to be around $50,000 to enable us to use the cards for living expenses.
There is substance to the submission on behalf of the defendants that it is likely there will be a further application to release further funds from the sale of the Hawaii property, expected to be paid by the IRS, once those funds have been received into the trust account of KKI. If that were not the case, why one might ask rhetorically does the most recent affidavit of Mr Crewes refer to this method of funding the repayment of the balance of the Noble lenders’ liability. There is certainly no other source of proposed funding of the $150,000 required on 20 June 2021 referred to in the evidence. The 19 May 2021 affidavit refers to the need for complete discharge of the undertaking so as to enable payment of further anticipated legal costs and the repayment of further credit card amounts to enable the use of those cards for living expenses.
It will only be upon release of the security over the remaining 900,000 MIL shares encumbered in favour of the Noble lenders and the making available of additional shares to KOA Capital as additional security, that the interest rate on the second mortgage loan over the Malvern property will reduce from 3.34% per month, to 2.5% per month.
As discussed in argument, it is not the role of the Court to determine the prudence or otherwise of both financial arrangements outlined by Mr Crewes in relation to the purchase of the Malvern property and the payment of the Noble lenders’ loan, amongst other matters. However, the Court must be satisfied that to refuse the variation sought would be unjust. The onus of persuading the Court that is the case lies upon Mr and Mrs Crewes. The balance of convenience is also a relevant consideration.
I am not satisfied that the applicants for the variation have discharged the onus. The critical issue of concern to Mr and Mrs Crewes, and which underlies the application to vary, concerns the risk of losing the deposit paid by Mr Crewes in relation to the Malvern property. That risk was a known risk at the time the undertaking was given. Nothing has changed, except that as a result of the nomination the Family Trust is now the proposed purchaser. When that nomination was made, the risk must have been known. The financial circumstances of Mr and Mrs Crewes were such that in late 2020 they had breached the undertaking now sought to be varied in order to meet family related expenses. The risk of loss of the deposit and of inability to complete the purchase was a risk before and after the undertakings were given. It is not unjust to refuse the variation which is sought at this late stage to seek to address that risk.
In any case, I am not satisfied on the evidence presented that the variation of the undertaking is the only way in which the Malvern purchase might be funded. The offer of the shares held by Mr Crewes’ brother and the ability, willingness or otherwise of him to come to Mr and Mrs Crewes’ aid and to the aid of the Family Trust are not adequately explained. The complexity of the financial dealings both disclosed and referred to without explanation, such as the Dallmont Pty Ltd debt, do not provide the Court with confidence that there has been proper disclosure of all relevant financial matters that bear on the question of the ability to complete the purchase by reference to means other than access to funds in the KKI trust account.
In considering whether the continuation of the undertaking would be unjust, it is relevant that both Mr and Mrs Crewes breached the undertaking which they now seek to vary and that they seek to do so at a point in time where the breach of the undertaking that occurred in late 2020 has not been remedied. It is clear from the evidence of Mr Crewes that he deliberately determined to breach the undertaking and to deal with the proceeds of the Hawaii property as he wished, including to apply part of those proceeds to pay the deposit of the Armadale property for his daughter. That alone has resulted in $129,000, which should have been in the trust account of KKI in accordance with existing undertaking, not being in that trust account. Although orders were made on 19 May 2021 for the replenishment of that trust account, that replenishment has not yet taken place. Mr Crewes’ affidavit in support of this application shows a desire and intent to apply to discharge the undertaking in its entirety. That desire is not consistent with the requirement to replenish the trust account.
The fact that Mrs Crewes has failed to acknowledge her own personal responsibility, having given the undertaking to the Court, and has not made an affidavit in support of this application does not assist in persuading the Court that it would be unjust not to grant the variation sought.
As to the balance of convenience, there are real questions about the utility of the proposed variation given the extraordinary complexity of the financial affairs of Mr and Mrs Crewes and companies and entities associated with them. For example, where is the $10,000 required to make up the shortfall on the Malvern purchase to come from? In support of the variation, Mr Crewes refers to paying net proceeds of sale of the Malvern apartment in reduction of a loan liability. However, the funds required to settle the purchase, including the deposit paid, almost equal its market value. There seems to be an air of unreality about the actions proposed to be taken concerning the resale of the Malvern apartment.
There is a further matter relevant to the balance of convenience. If the variation were to be agreed, fresh security in favour of KOA Capital would be held over shares which, based upon the Nelson affidavit, are shares to which TSH may be entitled to lay claim. While the proposed pleading has not yet been the subject of a grant of leave to amend, the matters set out in the Nelson affidavit and the existence of the proposed pleading and the claims that it articulates cannot be ignored when the Court is required to consider the balance of convenience and whether it would be unjust to refuse the variation. The matters referred to in the Nelson affidavit do not favour the variation.
In all the circumstances discussed above, the applicants for the variation have not discharged the onus of establishing that the undertakings they gave on 13 August 2020 should be varied as proposed. They have failed to demonstrate that for the undertakings, of which they still remain in breach, to remain in place would be unjust. The balance of convenience requires a weighing of competing considerations, including the possibility of other funding sources to complete the Malvern purchase and the prospective but foreshadowed claims by NTM over the MIL shares currently secured in favour of the Noble lenders. The complexity of the financial circumstances of Mr and Mrs Crewes and their related entities gives rise to a real question as to the utility of what is proposed when regard is had to so much of the financial position of Mr and Mrs Crewes and the trusts and companies which they control as has been disclosed.
The undertaking will be varied to permit payment of reasonable legal and living expenses of Mr and Mrs Crewes out of the sum of $339.449.02 presently held in the KKI trust account. The application to vary the terms of the undertaking as proposed on behalf of Mr and Mrs Crewes is refused.
The solicitors for Mr and Mrs Crewes should prepare a form of order giving effect to these reasons and submit it to chambers. The parties shall file written submissions as to costs of this application not exceeding three pages and provide them to chambers by 4.00 pm Monday, 31 May 2021.
SCHEDULE OF PARTIES
| WAYNE ANDREW LESLIE CREWES EILEEN FRANCES CREWES - AND - TOMI-SASHA HOLDINGS PTY LTD (ACN 076 376 308) (Receivers and Managers Appointed) (Administrators Appointed) IAN GRANT and PAUL LANGDON (in their capacity as Administrators of TOMI-SASHA HOLDINGS PTY LTD) NTM SUPER HOLDINGS PTY LTD (ACN 609 675 774) SIMON PATRICK NELSON | First plaintiff Second plaintiff First Defendant Second Defendant Third Defendant Fourth Defendant |
[34][2018] VSC 194, [18]-[19].
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