Taranto, S.L. v Taranto, A

[1993] FCA 756

7 5 6     93

JUDGMENT No. ......,....,.,,.,. I ..,,,..,.,..

IN THE FEDERAL COURT OF AUSTRAtIA )

NEW SOUTH WmES DISTRICT REGISTRY )	No. NG 3147 of 1992
GENERAL DIVISION	1

Between: SALVATORE LUIGI TARANTO

Applicant/Respondent

to the Motion

RECEIVED And: ANTHONP TARANTO Second Respondent/
Applicant on the Motion

FEDERAL COURT OF

AUSTRALIA

EX TEMPORE JUDGMENT

EINPELD J SYDNEY 1 OCTOBER 1993

In view of the short period of time between now and the hearing, it is necessary that judgment be given on the second respondent's motion of 1 September for the appointment of a receiver and manager of the business conducted by the first respondent, Moreslee Pty Limited. However, in the time available it has not been possible to commit to writing the detailed reasons for what I will now order. If necessary I will include them in the final judgment in the case. As was pointed out in the course of the submissions made in this matter, this order is one of those sought by the applicant in the application by which these proceedings were commenced. Thus it is common ground that a receiver should be appointed to the business. The only question raised on the motion is whether it should be done now or whether it should await the conclusion of the hearing when it is considered along with all the rest of the matters raised in the

case.

It is important to note that the hearing is due to commence on 11 October, with two weeks set aside at that time and another week reserved in mid November. As is pointed out in the submissions on behalf of the second respondent, as a practical matter this means that even though the hearing is to take place this year, it is quite unlikely that a judgment will be available before 1994, having in mind the pressures of the court list and other matters awaiting finalisation. If there is an appeal, the matter is unlikely to be completed until 1995. Hence, if a receiver is not appointed until the conclusion of the case the person may not be appointed for some considerable time. The matter must therefore be looked at not on the basis that we are only a week from the hearing but that we are some months from the resolutionof the dispute or disputes which divide these parties.

In support of the opposition to the appointment of a receiver at this time, the applicant's major arguments were that Moreslee Pty Limited will be subjected to extensive, and by that I assume he means additional, costs; that there will be no saving of court

appointed to preserve the assets of the trust of which the	time; that there is no evidenced need for a receiver to be
company is the trustee; that the appointment of a receiver will dissipate assets; and that it will involve an additional party or an additional figure being inserted into the proceedings at a late time.
Of course it is not possible for me to determine where the rights
and wrongs of the matter are in this unfortunate family dispute. Obviously a degree of emotion must have come into the matter, as always happens in family disputes. That element provides an even greater reason to withhold from forming even tentative preliminary views. However, I have read the material filed to date and have carefully considered the question of cost and the saving of time, as well as the possibility that the appointment of a receiver now would add a significant complexity to an already not simple hearing. But I am unable to see how any of those detrimental effects are likely to occur from immediately acceding to the order which it is common ground is required in the case. To the contrary, it seems to me that the appointment of a receiver might help to facilitate if not a resolution of the dispute then certainly some clarification of the issues that will arise in the matter.
It is interesting that apart from seeking the appointment of a receiver, the application is almost entirely for declarations and a holding to account. It is certainly not possible for me to say whether the appointment of a receiver is necessary for the
protection of the company's assets at this time. I am not at all

clear what the assets are and to what risks they are subject, but it does not seem that the appointment of a receiver now will cause any undue dissipation of whatever assets there are. In due course the appointment of a receiver will have to be paid for in any event and it would normally be paid for out of the assets of the company. The costs of a receivership are therefore likely to be borne by the company whether a receiver is appointed now or at a later time. The timing of the order should not affect costs to any significant degree if at all. On the other hand, as it seems to me, the assistance of a receiver will be needed before any meaningful orders can be made on many of the matters sought in the application.

The application also seeks an order, quite unusual at the commencement of an action, that the applicant's costs be paid by the respondents on an indemnity basis. That seems to emphasise to me that any independent assistance which the Court can obtain in understanding the issues andmatters of dispute will advantage the hearing and not cause it disadvantage or extra time or costs. It is not simple for a judge coming into the matter at the end of a significant and quite lengthy dispute between members of a family to crystallise all the issues and resolve them clearly. In my opinion an action of this kind requires as much objectivity as it is possible to achieve. It seems to me in these circumstances that the appointment of a receiver is likely to assist rather than to hinder the search for truth and justice between the parties.

me to agree that the motion of the second respondent should be	That is a very brief summary of the reasons which have impelled
acceded to. The costs of the motion will be reserved and ruled on at a later time so that the only order that will be made for the moment is an order in terms of paragraph 1 of the motion and paragraph 6 of the application.

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