SMP Consolidated Pty Limited (in liquidation) v Posmot Pty Limited (No 2)

[2015] FCA 981

FEDERAL COURT OF AUSTRALIA

SMP Consolidated Pty Limited (in liquidation) v Posmot Pty Limited (No 2) [2015] FCA 981

Citation:	SMP Consolidated Pty Limited (in liquidation) v Posmot Pty Limited (No 2) [2015] FCA 981
Parties:	SMP CONSOLIDATED PTY LTD (IN LIQUIDATION) and PHILIP RAYMOND HOSKING IN HIS CAPACITY AS LIQUIDATOR OF SMP CONSOLIDATED PTY LTD (IN LIQUIDATION) v POSMOT PTY LIMITED AS TRUSTEE FOR THE POSMOT SUPER FUND
File number(s):	NSD 1266 of 2014
Judge(s):	YATES J
Date of judgment:	8 September 2015
Catchwords:	CORPORATIONS – application for discharge of receiver and manager – application granted
Legislation:	Corporations Act 2001 (Cth) s 109X
Cases cited:	SMP Consolidated Pty Limited (in Liquidation) v Posmot Pty Limited [2014] FCA 1382
Date of hearing:	Determined on the papers
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	8
Solicitor for the Plaintiffs:	Mr P Harrison of Kemp Strang
Counsel for the Defendant:	The defendant did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1266 of 2014

BETWEEN:

SMP CONSOLIDATED PTY LTD (IN LIQUIDATION)
First Plaintiff

PHILIP RAYMOND HOSKING IN HIS CAPACITY AS LIQUIDATOR OF SMP CONSOLIDATED PTY LTD (IN LIQUIDATION)
Second Plaintiff

AND:

POSMOT PTY LIMITED AS TRUSTEE FOR THE POSMOT SUPER FUND
Defendant

JUDGE:	YATES J
DATE OF ORDER:	8 SEPTEMBER 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Philip Raymond Hosking be discharged as receiver and manager of the assets of the SMP Trust.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1266 of 2014

BETWEEN:

SMP CONSOLIDATED PTY LTD (IN LIQUIDATION)
First Plaintiff

PHILIP RAYMOND HOSKING IN HIS CAPACITY AS LIQUIDATOR OF SMP CONSOLIDATED PTY LTD (IN LIQUIDATION)
Second Plaintiff

AND:

POSMOT PTY LIMITED AS TRUSTEE FOR THE POSMOT SUPER FUND
Defendant

JUDGE:	YATES J
DATE:	8 SEPTEMBER 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 9 December 2014, I made an order appointing the second plaintiff, Mr Hosking, as the receiver and manager of the assets of the SMP Trust: SMP Consolidated Pty Limited (in liquidation) v Posmot Pty Limited [2014] FCA 1382. The only asset was certain property at Castle Hill. The appointment was made “until further order”.

2. The order was made in circumstances where the Castle Hill property was already subject to a contract for sale which, at that time, was due to complete on 29 December 2014.  The reasons for Mr Hosking’s appointment as receiver and manager are set out in my earlier reasons for judgment and need not be repeated here.

3. An interlocutory process dated 21 August 2015 (the interlocutory process) has been filed seeking an order that Mr Hosking be discharged as receiver and manager of the assets of the SMP Trust following the completion of the sale of the Castle Hill property, which in fact took place in January 2015.

4. Mr Hosking has made an affidavit (the supporting affidavit) in which he has deposed to the completion of the sale, the payment of the first plaintiff’s creditors, and the payment of the remuneration, costs and expenses of the liquidator of the first plaintiff. 

5. There was a surplus of $12,189.17 following these payments.  This sum has now been paid to the defendant, for whose immediate benefit the assets of the SMP Trust were held. 

6. There is also evidence before me that the defendant has been served by post, pursuant to

   
   

   s 109X(1)(a) of the Corporations Act 2001 (Cth), with the interlocutory process and the supporting affidavit. I should note, however, that I have been informed that the documents were returned to the plaintiffs’ solicitors as undelivered mail.

7. In view of the fact that the purpose for Mr Hosking’s appointment has now been fulfilled and that there is no apparent reason why his appointment should remain, I am satisfied that it is appropriate that an order be made discharging Mr Hosking as receiver and manager of the assets of the SMP Trust.

8. An order will be made accordingly.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

Associate:

Dated:        8 September 2015