Sutherland v Jot Property Solutions Pty Ltd - [2015] QSC 249

SUPREME COURT OF QUEENSLAND

CITATION:

Sutherland & Anor v Jot Property Solutions Pty Ltd [2015] QSC 249

PARTIES:

RODERICK MACKAY SUTHERLAND
and
TRAJAN JOHN KUKULOVSKI
AS LIQUIDATORS OF BLUECHIP PROPERTY SERVICES PTY LTD (IN LIQ) (ACN:108514245)
(Plaintiffs)

v
JOT PROPERTY SOLUTIONS PTY LTD (ACN:132272210)
(First Defendant)
and
JOT INVESTMENT HOLDINGS PTY LTD
(ACN 137828507) IN ITS OWN RIGHT AND AS TRUSTEE OF THE JPI UNIT TRUST
(Second Defendant)
and
TARA MAREE SMYTH AS TRUSTEE OF THE J&T SMYTH FAMILY TRUST
(Third Defendant)
and
KERRY GRAHAM HOLDINGS PTY LTD (ACN:143732772) AS TRUSTEE OF THE KERRY GRAHAM TRUST
(Fourth Defendant)

FILE NO.

SC 58 of 2014

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Mackay

HEARING DATE:

18 May 2015

DELIVERED ON:

25 August 2015

DELIVERED AT:

Cairns

JUDGE:

Henry J

ORDERS:

The statement of claim is struck out.1.

I will hear the parties at 10.00 am on 16 October 2015 as to what further orders should be made (leave is given for parties to appear by telephone or video link).2.

CATCHWORDS:

CORPORATIONS – WINDING UP – CONDUCT AND INCIDENTS OF WINDING UP – AVOIDANCE OF DISPOSITIONS OF PROPERTY – APPLICATION BY LIQUIDATOR – where the plaintiff liquidator makes an application pursuant to s 228 of the Property Law Act 1974 (Qld) for declarations and orders to set aside and reverse the sale of the defendants’ businesses long prior to liquidation – whether the plaintiff has standing to bring such an action – whether the plaintiff liquidator comes within the meaning of “person prejudiced by the alienation of the property” under s 228 – whether the plaintiff has standing to bring an action pursuant to s 477(2) of the Corporations Act 2001 (Cth) – whether there was causal connection between the transactions and the plaintiff’s alleged prejudice

Corporations Act 2001 (Cth) s 477, s 530, s 536(1)(b), s 588,
Property Law Act 1974 (Qld) s 228

Chen v Marcolongo (2009) 260 ALR 353, cited
Christianos v Aloridge (1995) 59 FCR 273, cited
Kern Consulting Group Pty Ltd & Anor v Opus Capital Ltd [2014] QCA 111, cited
Koutavas v Struthers [2011] FCA 322, cited
Re Lawrence Waterhouse Pty Ltd (in Liq) Shaw v Minsden Pty Ltd [2011] NSWSC 964, cited
Re McGrath & Anor (2010) 78 ASCR 405, cited

COUNSEL:

A I O’Brien for the Applicant First, Second and Third Defendants
P O Land for the Respondent Plaintiff

SOLICITORS:

McKays Solicitors for the Applicant First, Second and Third Defendants
Morrow Petersen Solicitors for the Applicant Fourth Defendant
The Respondent Plaintiff briefed counsel directly

The defendants seek to end the proceeding against them early on the basis that the plaintiffs lack standing to bring the proceeding (“the lack of standing argument”). This the first, second and third defendants seek to do through an application to have the claim set aside or alternatively have the statement of claim struck out. The fourth defendant seeks to do so by applying to have the statement of claim struck…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] QSC 249
Decision Date: 25 August 2015

CaseChat Overview and Summary

The case of Sutherland v Jot Property Solutions Pty Ltd involved a plaintiff liquidator seeking to overturn the sale of the defendant company’s business prior to its liquidation. The plaintiff argued that the sale was conducted at an undervalue and sought to have it set aside under section 228 of the Property Law Act 1974 (Qld). The defendants, Jot Property Solutions Pty Ltd, contested the application, arguing that the plaintiff lacked standing to bring the action. They contended that the plaintiff did not fall within the definition of “person prejudiced by the alienation of the property” as required by section 228. Additionally, the defendants challenged the plaintiff’s standing under section 477(2) of the Corporations Act 2001 (Cth), questioning whether there was a causal connection between the transactions and the plaintiff’s alleged prejudice.

The court had to determine whether the plaintiff liquidator had the necessary standing to bring the action to avoid the disposition of property. This required examining whether the plaintiff was indeed prejudiced by the alienation of the property, as stipulated by section 228 of the Property Law Act. The court also needed to assess whether the plaintiff met the criteria for standing under section 477(2) of the Corporations Act, specifically focusing on the causal connection between the alleged prejudicial transactions and the plaintiff’s standing. The court found that the plaintiff did not have standing to bring the action, as there was no causal connection between the transactions and the alleged prejudice.

The court struck out the statement of claim, ruling that the plaintiff did not meet the requirements for standing under either section 228 of the Property Law Act or section 477(2) of the Corporations Act. The court concluded that without establishing the necessary causal connection between the transactions and the plaintiff’s alleged prejudice, the plaintiff could not proceed with the application. Consequently, the court ordered that the statement of claim be struck out, and further orders would be determined after hearing the parties on 16 October 2015.

Orders

Orders of the court

The statement of claim is struck out.1.

I will hear the parties at 10.00 am on 16 October 2015 as to what further orders should be made (leave is given for parties to appear by telephone or video link).2.

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.

CITATION:	Sutherland & Anor v Jot Property Solutions Pty Ltd [2015] QSC 249
PARTIES:	RODERICK MACKAY SUTHERLAND and TRAJAN JOHN KUKULOVSKI AS LIQUIDATORS OF BLUECHIP PROPERTY SERVICES PTY LTD (IN LIQ) (ACN:108514245) (Plaintiffs) v JOT PROPERTY SOLUTIONS PTY LTD (ACN:132272210) (First Defendant) and JOT INVESTMENT HOLDINGS PTY LTD (ACN 137828507) IN ITS OWN RIGHT AND AS TRUSTEE OF THE JPI UNIT TRUST (Second Defendant) and TARA MAREE SMYTH AS TRUSTEE OF THE J&T SMYTH FAMILY TRUST (Third Defendant) and KERRY GRAHAM HOLDINGS PTY LTD (ACN:143732772) AS TRUSTEE OF THE KERRY GRAHAM TRUST (Fourth Defendant)
FILE NO.	SC 58 of 2014
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Mackay
HEARING DATE:	18 May 2015
DELIVERED ON:	25 August 2015
DELIVERED AT:	Cairns
JUDGE:	Henry J
ORDERS:	The statement of claim is struck out.1. I will hear the parties at 10.00 am on 16 October 2015 as to what further orders should be made (leave is given for parties to appear by telephone or video link).2.
CATCHWORDS:	CORPORATIONS – WINDING UP – CONDUCT AND INCIDENTS OF WINDING UP – AVOIDANCE OF DISPOSITIONS OF PROPERTY – APPLICATION BY LIQUIDATOR – where the plaintiff liquidator makes an application pursuant to s 228 of the Property Law Act 1974 (Qld) for declarations and orders to set aside and reverse the sale of the defendants’ businesses long prior to liquidation – whether the plaintiff has standing to bring such an action – whether the plaintiff liquidator comes within the meaning of “person prejudiced by the alienation of the property” under s 228 – whether the plaintiff has standing to bring an action pursuant to s 477(2) of the Corporations Act 2001 (Cth) – whether there was causal connection between the transactions and the plaintiff’s alleged prejudice Corporations Act 2001 (Cth) s 477, s 530, s 536(1)(b), s 588, Property Law Act 1974 (Qld) s 228 Chen v Marcolongo (2009) 260 ALR 353, cited Christianos v Aloridge (1995) 59 FCR 273, cited Kern Consulting Group Pty Ltd & Anor v Opus Capital Ltd [2014] QCA 111, cited Koutavas v Struthers [2011] FCA 322, cited Re Lawrence Waterhouse Pty Ltd (in Liq) Shaw v Minsden Pty Ltd [2011] NSWSC 964, cited Re McGrath & Anor (2010) 78 ASCR 405, cited
COUNSEL:	A I O’Brien for the Applicant First, Second and Third Defendants P O Land for the Respondent Plaintiff
SOLICITORS:	McKays Solicitors for the Applicant First, Second and Third Defendants Morrow Petersen Solicitors for the Applicant Fourth Defendant The Respondent Plaintiff briefed counsel directly