Rosen v Georges (No.2)

[2014] VSC 453

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S CI 2012 05298

BETWEEN:

JONATHEN JEREMY ROSEN	Plaintiff
v
GEORGE GEORGES	Defendant

AND

IN THE MATTER OF LUDON NOMINEES PTY LTD (DEREGISTERED)
ACN 084 891 109

S CI 2012 04125

BETWEEN

ALLSTON HOMES PTY LTD ACN 006 804 977 (IN LIQUIDATION) AND OTHERS	Plaintiffs
v
LUDON NOMINEES PTY LTD ACN 084 891 109 (DEREGISTERED)	Defendant

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JUDGE:	RANDALL AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	23 and 24 January 2013
DATE OF JUDGMENT:	16 September 2014
CASE MAY BE CITED AS:	Rosen v Georges (No.2)
MEDIUM NEUTRAL CITATION:	[2014] VSC 453	First Revision: 17 September 2014

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PRACTICE AND PROCEDURE – Disposition of originating processes after judgment on interlocutory process effectively disposed of proceeding.

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HIS HONOUR:

1. On 6 May 2014 I delivered reasons for judgment in relation to the interlocutory process filed on behalf of Allston Homes Pty Ltd (In Liquidation) and others and an interlocutory process filed on behalf of Jonathen Jeremy Rosen.  The orders made on each interlocutory process effectively disposed of each of the relevant originating processes.

1. I invited the parties to provide submissions and draft orders with respect to each of the originating processes.  I have now had the opportunity to consider those.

1. I note as follows:

(a)   There is agreement as to:

(i)     The reinstatement of the registration of Ludon Nominees Pty Ltd;

(ii)  Upon reinstatement of Ludon Nominees Pty Ltd it be wound up pursuant to s 461(1)(K) of the Corporations Act 2001 (Vic) (the Act) and Ross Blakeley be appointed as liquidator for the purposes of winding up;

(iii)             The originating process filed on behalf of Jonathen Rosen dated 19 September 2012 be dismissed.

(b)   There is disagreement as to:

(i)         Costs;

(ii)       The necessity to notify Adam Wilson Barr as to the making of these orders.

1. I also note that Mr Georges anticipates that there will be a surplus in one or more of the liquidations for distribution to contributories after resolution of the issue of contribution towards the NAB liability, which Mr Georges accepts was cross-collateralised.

1. Mr Georges, as liquidator of Allston Homes Pty Ltd (In Liq) and Mactry Pty Ltd (In Liq) was required to file the originating process to obtain the appropriate relief irrespective of whether or not there was any opposition.  The issues arising with respect to standing and to the conduct of the liquidations mainly arose upon Mr Rosen’s originating process.  Accordingly, the bulk of the costs on the liquidator’s originating process were properly incurred in and appropriately attributable to each of the liquidations.

1. It follows from the position put on behalf of Mr Jonathen Rosen that he contends (although I determined that the application to register the transfer of shares in Allston Homes Pty Ltd was refused) that he, rather than the estate of Gloria Wright, will ultimately be entitled to any distribution or distributions.  Even though Mr Georges should not be out of pocket with respect to litigation arising out of the conduct of the liquidations, it is inappropriate to order that Mr Rosen pay such costs when he might ultimately receive a distribution. 

1. Although Mr Georges has raised the issue of whether or not the costs of various steps in the originating process filed on behalf of Mr Rosen should be paid other than on a standard basis by Mr Rosen, that issue has not been pursued with any alacrity.  I determine that Mr Georges should not approbate and reprobate with respect to the same.  Likewise, there is real doubt about whether Mr Barr provided any instructions to prosecute proceedings on his behalf.  In those circumstances I do not require the liquidator to notify him of these orders.  Mr Rosen may attend to that if he determines it appropriate.

1. Given my determinations I make orders as follows: 

1. In S CI 2014 04125, THE COURT ORDERS THAT —

1. ASIC reinstate the registration of Ludon Nominees Pty Ltd (ACN 084 891 109) (‘Company’) pursuant to section 601AH(2) of the Corporations Act 2001 (‘Act’).

2. Upon the reinstatement of the Company, it be wound up pursuant to section 461(1)(k) of the Act and Ross Blakeley of Level 16, 600 Bourke Street, Melbourne, Victoria, be appointed as liquidator of the Company.

3. Pursuant to section 467(3)(b) of the Act, the formal requirements of the Act and the Supreme Court (Corporations) Rules 2003 in regard to the usual advertising and notification processes in respect of the plaintiff’s application for the winding up of the Company be dispensed with.

4.        As soon as practicable, the plaintiffs lodge a copy of the order as authenticated and a completed Form 105 with ASIC.

5.        Prior to the plaintiffs lodging with ASIC a copy of any authenticated order of the Court and a completed Form 105, the plaintiffs pay ASIC’s costs of the first return of this proceeding fixed in the sum of $495.00.

6.        As soon as practicable, the plaintiffs by ordinary post send to the estate of Gloria Margaret Wright c/- Scully Legal, a copy of this order as authenticated, together with a copy of the reasons for judgment dated 6 May 2014 and a copy of the order made on 8 May 2014.  

7.        The plaintiff’s costs of and incidental to the originating process filed 19 July 2012 together with reserved costs of the hearings on 23 and 24 January 2013 and the directions hearings held on 12 October 2012 and 14 November 2012 be costs in the winding up of Allston Homes Pty Ltd (In Liq) and Mactry Pty Ltd (In Liq). 

1. In S CI 2014 05298, THE COURT ORDERS THAT —

1.        The originating process dated 19 September 2012 is dismissed.

2.        The interlocutory process dated 12 November 2012 filed on behalf of the plaintiff and Adam Wilson Barr is dismissed. 

3.        The costs of George Georges of the originating process and all interlocutory process be costs in the winding up of Allston Homes Pty Ltd (In Liq) and Mactry Pty Ltd (In Liq). 

4.        In the event that after the resolution of the issue with respect to contribution in relation to the NAB liability referred to in the reasons for judgment dated 5 May 2014 there is any shortfall in meeting George Georges’ costs out of the liquidations of Allston Homes Pty Ltd (In Liq) and Mactry Pty Ltd (In Liq), the plaintiff indemnify George Georges with respect to any such shortfall. 

5.        There be liberty to apply reserved to the parties on reasonable written notice to apply with respect to the issue of any costs which are not met out of the liquidations of Allston Homes Pty Ltd (In Liq) and Mactry Pty Ltd (In Liq).