Say-Dee Pty Ltd v Farah Constructions Pty Ltd & Ors (No.3)

Say-Dee Pty Ltd, as the appellant, sought to vary prior orders of the Court of Appeal concerning the powers of receivers appointed over certain properties. The dispute arose in the context of a potential redevelopment of these properties and the impact of a proposed Local Environment Plan. The matter was heard by the Court.

The primary legal issue before the Court was whether the existing orders, which granted receivers power to sell the properties, should be varied to allow for more flexibility in the sale process and to expressly permit the receivers to engage in town planning activities to maximise the sale price. Specifically, the Court had to determine if the receivers should be empowered to postpone sales if a greater price was likely to be achieved in the future, and if they should be authorised to make applications, enter negotiations with the local council, and obtain development consents or approvals, including rezoning, to enhance the properties' value.

The Court reasoned that the existing orders, while authorising a sale, did not adequately equip the receivers to navigate the complexities of the evolving town planning landscape and market conditions. Applying the principles of procedural fairness and the overarching duty of receivers to obtain the best possible price for the assets under their control, the Court determined that the orders should be varied. This variation would allow the receivers to exercise greater discretion in timing the sale and to proactively engage in town planning processes, including seeking necessary approvals and rezoning, to maximise the gross sale price of the properties.

Consequently, the Court ordered that specific paragraphs of the prior order be deleted and substituted with new provisions. These new provisions granted the receivers the power to sell the properties individually, as two lots, or as one lot, and to postpone sales if it was reasonably likely to achieve a greater sale price. Furthermore, the receivers were authorised to engage consultants, make applications, and enter negotiations with the Burwood Municipal Council and other parties to obtain development consents, approvals, and any necessary rezoning to achieve the maximum sale price. The respondents were also ordered to pay the appellant's costs of the notice of motion.