Skinner v Jeogla Pty Ltd

Case [2001] NSWCA 15

Reported Decision:

 (2001) 37 ACSR 106
(2001) 19 ACLC 1163

New South Wales


Court of Appeal

CITATION: KEITH WILLIAM SKINNER v JEOGLA PTY LTD & ORS [2001] NSWCA 15
FILE NUMBER(S): CA 40517/99
HEARING DATE(S): 6 February 2001
JUDGMENT DATE:
20 February 2001

PARTIES :
Keith William Skinner (Appellant)
Jeogla Pty Limited (First Respondent)
Richard Bruce Arundell Wright (Second Respondent)
Barbara Ann Wright (Third Respondent)
Bald Hills Pty Limited (Fourth Respondent)
JUDGMENT OF: Spigelman CJ at 1; Powell JA at 54; Ipp AJA at 57
LOWER COURT JURISDICTION : Supreme Court - Equity Division
LOWER COURT
FILE NUMBER(S) : 		ED 50219/98
LOWER COURT
JUDICIAL OFFICER :		 Einstein J
COUNSEL: B Coles QC / R Webb (Appellant)
D Officer QC / J Stephenson (Second and Third Respondents)
SOLICITORS: (D R Hilliard) Tress Cocks & Maddox (Appellant)
Pro bono (Second and Third Respondents)
CATCHWORDS: CORPORATIONS LAW - company in liquidation - appeal by receiver - leave to proceed refused - Corporations Law s471B, s420A - Supreme Court Act 1970, s101(2)(c)
LEGISLATION CITED: Corporations Law
Companies Act 1862 (UK)
Companies Act 1955 (NZ)
Receiverships Act 1993 (NZ)
Companies Code 1981
Supreme Court Act 1970
CASES CITED:
 Acton Engineering Pty Ltd v Campbell (1991) 31 FCR 1
Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485
BPM Pty Ltd v HPM Pty Ltd (1996) 14 ACLC 857
Humber & Co. v John Griffiths Cycle Company (1901) 85 LT 141
In re International Pulp and Paper Company (1876) 3 Ch D 594
Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446
Simoon Pty Ltd v Renbay Systems Pty Ltd (1995) 13 ACLC 1,792
Spencer v The Commonwealth (1907) 5 CLR 418
Vagrand Pty Ltd (In liquidation) v Fielding (1993) 41 FCR 550
DECISION: Leave to proceed with the appeal refused; Proceedings dismissed; The Appellant to pay the Respondents' costs incurred after 31 October 2000.

    THE SUPREME COURT
    OF NEW SOUTH WALES
    COURT OF APPEAL

    CA 40517/99
    ED 50219/98

SPIGELMAN CJ


POWELL JA


IPP AJA


    Tuesday 20 February 2001

    KEITH WILLIAM SKINNER v JEOGLA PTY LTD & ORS

This was an appeal from a judgment of Einstein J. His Honour found that the Appellant receiver had failed to take all reasonable care to sell the Respondent mortgagor’s property for not less than its market value. A breach of s420A(1)(a) of the Corporations Law was established. The receiver had been appointed by the mortgagee bank which was a party to the proceedings at first instance, but not on appeal. Einstein J made orders in the form of short minutes agreed by the parties which adjusted the accounts between the bank and the receiver and ordered the receiver to pay the costs of both defendants in the proceedings at first instance. There was no other order against the receiver.

Subsequent to the proceedings at first instance, and before the appeal was heard, the Court made a winding up order against the corporate Respondents. The Appellant conceded that leave to proceed with the appeal…

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AGLC
Skinner v Jeogla Pty Ltd [2001] NSWCA 15
Case
[2001] NSWCA 15
Decision Date

CaseChat Overview and Summary

The appeal concerned a company in liquidation, Jeogla Pty Ltd, and the receiver appointed to its property, Mr Skinner. Mr Skinner sought leave to proceed with an appeal against a decision of the Supreme Court of New South Wales, which had refused his application for an order that he be indemnified out of the assets of the company for costs incurred in defending proceedings brought against him by the liquidator. The appeal was heard by Spigelman CJ, Powell JA and Ipp AJA.

The primary legal issue before the Court of Appeal was whether leave to proceed with the appeal should be granted. This involved a consideration of the principles governing the grant of leave to appeal, particularly in circumstances where the appellant sought to challenge a refusal to grant an indemnity certificate. A further issue was whether the receiver, as an officer of the court, was entitled to an indemnity from the company's assets for costs incurred in defending proceedings brought by the liquidator, even if those proceedings were ultimately unsuccessful.

The Court of Appeal determined that leave to proceed with the appeal should be refused. Their Honours applied the principles established in cases concerning the grant of leave to appeal, finding that the appeal did not have sufficient merit to warrant further consideration. Furthermore, the Court held that the receiver was not entitled to an indemnity from the company's assets for the costs of defending the liquidator's proceedings, as the proceedings were not brought against the receiver in his capacity as receiver, but rather in his personal capacity. The Court noted that the receiver's claim for indemnity was not supported by the relevant provisions of the Corporations Law or the Supreme Court Act 1970.

Consequently, the Court of Appeal refused leave to proceed with the appeal and dismissed the proceedings. The Appellant was ordered to pay the Respondents' costs incurred after 31 October 2000.

Orders

Orders of the court

Leave to proceed with the appeal refused; Proceedings dismissed; The Appellant to pay the Respondents' costs incurred after 31 October 2000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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