Skouloudis v Planet Enterprizes

[2003] NSWCA 31

CITATION:	SKOULOUDIS v PLANET ENTERPRIZES [2003] NSWCA 31
HEARING DATE(S):	17 February 2003
JUDGMENT DATE:	17 February 2003
JUDGMENT OF:	Handley JA at 1; Giles JA at 23; Hodgson JA at 24
DECISION:	Appeal dismissed as incompetent. Orders made
CATCHWORDS:	COMPANIES - winding up - uncommercial transaction before winding up - Corporations Act s 588 FB
LEGISLATION CITED:	Corporations Act
CASES CITED:	Jones v Dunkel (1959) 101 CLR 298
PARTIES :	SKOULOUDIS GROUP PTY LIMITED (in liquidation) & Anor v PLANET ENTERPRIZES PTY LIMITED
FILE NUMBER(S):	CA 40324/02
COUNSEL:	Appellant - C R C Newlinds Respondent - G Thomas
SOLICITORS:	Appellant - Kemp Strang Sydney Respondent - R F Bergagnin & Co Marrickville

LOWER COURTJURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	ED 5978/01
LOWER COURT JUDICIAL OFFICER :	Windeyer J

40324/02
ED 5978/01
HANDLEY JA
GILES JA
HODGSON JA


17 February 2003

SKOULOUDIS GROUP PTY LIMITED (IN LIQ) & ANOR

v

PLANET ENTERPRIZES PTY LIMITED

COMPANIES – winding up – uncommercial transaction before winding up – Corporations Act s 588 FB

The company and its liquidator sued for the avoidance of the sale of a business of the company to a company nominated by the wife of the controlling director. The vendor company was insolvent. The contract of sale was not reduced to writing and was proved by the evidence of the director and his wife. However it was carried into effect and the wife’s company took possession of the business and ran it.

The consideration for the sale was the assumption by the purchaser of the liabilities of the business including the employee entitlements. The trial Judge held that the liquidator had not proved that the transaction was uncommercial and dismissed the proceedings.

On appeal:

HELD: There was no acceptable evidence of the value of the business, and there was no acceptable evidence of the value of the consideration for its sale. The obligations taken over by the purchaser and those it had paid had not been ascertained. The liquidator had therefore failed to prove that the transaction was uncommercial for the purposes of s 588 FB (1) of the Corporations Act and the appeal would be dismissed.

ORDERS

(1) Appeal dismissed as incompetent.

(2) Appellants to pay the respondent's costs on an ordinary basis up to 5 September and its costs as a submitting respondent thereafter.

40324/02
ED 5978/01
HANDLEY JA
GILES JA
HODGSON JA


17 February 2003

SKOULOUDIS GROUP PTY LIMITED (IN LIQ) & ANOR

v

PLANET ENTERPRIZES PTY LIMITED

Judgment

1 HANDLEY JA: This is an appeal as of right by a company in liquidation and its liquidator from the decision of Windeyer J of 28 March 2002 dismissing their summons of 14 December 2001 which had sought a declaration that the transfer of the "O Kosmos" newspaper business to Planet Enterprizes Pty Limited, the respondent to this appeal, was an insolvent transaction within s 588FC of the Corporations Act because it was an uncommercial transaction within s 588FB(1).

2 It was common…