FEDERAL COURT OF AUSTRALIA
Saward v J & A Saward Developments Pty Ltd [2012] FCA 404
Citation: Saward v J & A Saward Developments Pty Ltd [2012] FCA 404 Parties: JASON RAYMOND SAWARD and ATHOL RAYMOND SAWARD v J & A SAWARD DEVELOPMENTS PTY LTD (RECEIVERS APPOINTED) (ACN 109 526 614), MICHAEL FUNG, KATHRYN GUINEVERE BARWICK and NATIONAL AUSTRALIA BANK LIMITED (ABN 12 044 937) File number: VID 254 of 2012 Judge: BROMBERG J Date of judgment: 30 March 2012 Catchwords: BANKRUPTCY AND INSOLVENCY – s 1321 of the Corporations Act 2001 (Cth) – interlocutory application to restrain sale of properties by receivers – whether receivers’ conduct is unreasonable – application dismissed. Legislation: Corporations Act 2001 (Cth) s 1321
Federal Court (Corporations) Rules r 14.1Cases cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
Australian Securities and Investments Commission v Forestview Nominees Proprietary Limited (Receivers and Managers Appointed) [2006] FCA 1530
Re Equity Funds of Australia (In Liquidation) (1976) 2 ACLR 238
Acer Computer Australia Pty Ltd v Carter (No. 2) [2007] FCA 1943Date of hearing: 27 and 29 March 2012 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 28 Counsel for the Plaintiffs: Mr D Crennan Solicitor for the Plaintiffs: Rod Glover Legal Counsel for the Defendants: Mr C Salpigtidis Solicitor for the Defendants: Thomsons Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 254 of 2012
BETWEEN: JASON RAYMOND SAWARD
First PlaintiffATHOL RAYMOND SAWARD
Second PlaintiffAND: J & A SAWARD DEVELOPMENTS PTY LTD (RECEIVERS APPOINTED) (ACN 109 526 614)
First DefendantMICHAEL FUNG
Second DefendantKATHRYN GUINEVERE BARWICK
Third DefendantNATIONAL AUSTRALIA BANK LIMITED (ABN 12 044 937)
Fourth Defendant
JUDGE:
BROMBERG J
DATE OF ORDER:
30 MARCH 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The plaintiffs’ interlocutory application be dismissed.
2.The costs of the second, third and fourth defendants be paid by the plaintiffs on a party-party basis.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 254 of 2012
BETWEEN: JASON RAYMOND SAWARD
First PlaintiffATHOL RAYMOND SAWARD
Second PlaintiffAND: J & A SAWARD DEVELOPMENTS PTY LTD (RECEIVERS APPOINTED) (ACN 109 526 614)
First DefendantMICHAEL FUNG
Second DefendantKATHRYN GUINEVERE BARWICK
Third DefendantNATIONAL AUSTRALIA BANK LIMITED (ABN 12 044 937)
Fourth Defendant
JUDGE:
BROMBERG J
DATE:
30 MARCH 2012
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The plaintiffs have brought a proceeding seeking to restrain the sale by the second and third defendants (“the receivers”), of 23 properties located in Tasmania (“the properties”). They rely on s 1321 of the Corporations Act 2001 (Cth). The receivers were appointed by the fourth defendant (“the NAB”) as:
(a)receivers and managers to the property and assets of the first defendant (“Saward Developments”) and;
(b)receivers to real property of the first and second plaintiffs which is mortgaged to the NAB.
Each of the properties is the subject of…
Keep reading for free
Create a free CaseChat account to read Saward v J and a Saward Developments Pty Ltd 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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2012] FCA 404
- Decision Date
CaseChat Overview and Summary
The court considered the principles governing the exercise of discretion to restrain the sale of property by receivers. The court held that the plaintiffs had not demonstrated that the receivers' conduct was unreasonable or prejudicial to their interests. The court found that the receivers had acted in accordance with their statutory powers and duties, and that the sale of the properties was necessary to realise assets for the benefit of creditors. The court also noted that the plaintiffs had not provided sufficient evidence to support their allegations of misconduct or impropriety on the part of the receivers.
The court dismissed the plaintiffs' interlocutory application and ordered that the costs of the second, third and fourth defendants be paid by the plaintiffs on a party-party basis. The court held that the plaintiffs' application was without merit and that the defendants had acted reasonably in selling the properties. The court also noted that the plaintiffs had not demonstrated that the sale of the properties would cause them any significant prejudice or loss.
The final orders of the court were that the plaintiffs' interlocutory application be dismissed and that the costs of the second, third and fourth defendants be paid by the plaintiffs on a party-party basis. The court held that the plaintiffs had not demonstrated any grounds for restraining the receivers from selling the properties, and that the sale was necessary to realise assets for the benefit of creditors. The court also noted that the plaintiffs' application was without merit and that the defendants had acted reasonably in selling the properties.
Orders
Orders of the court
1. The plaintiffs’ interlocutory application be dismissed.
2. The costs of the second, third and fourth defendants be paid by the plaintiffs on a party-party basis.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.