| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
LIST E
No. 01895 of 2011
IN THE MATTER of GREAT SOUTHERN MANAGERS aUSTRALIA LIMITED
(ACN 083 825 405) (Receivers and Managers Appointed) (in liquidation)
| James Gerard Thackray, Colin McIntosh Nicol and Anthony Gregory McGrath in their PERSONAL capacity AND as receivers and managers of GREAT SOUTHERN MANAGERS aUSTRALIA LIMITED (ACN 083 825 405) (Receivers and Managers Appointed) (in LIQUIDAtion) | Plaintiffs |
| v | |
| GUNNS PLANTATIONS LIMITED (ACN 091 232 209) & Ors (according to the schedule attached) | Defendants |
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JUDGE: | Davies J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 August 2011 | |
DATE OF JUDGMENT: | 30 August 2011 | |
CASE MAY BE CITED AS: | Thackray & Ors v Gunns Plantations Ltd & Ors (No 2) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 417 | |
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CORPORATIONS – Receiver claims entitlement to indemnity secured by equitable lien for costs and expenses of receivership of the Responsible Entity of Managed Investment Schemes – Prima facie entitlement established – No objection – Final orders
ASSIGNMENT – Whether right to indemnity and lien arising from salvage principles assignable – Principles
DECLARATION – Parties agreed in principle to enter into assignment deed – Declaration sought about how prospective assignment deed will operate – Whether the parties have a “real interest” in the declaratory relief
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr J. G. Santamaria QC with Dr O. Bigos and Mr M. A. J. McKillop | Minter Ellison |
| For the First Defendant | Mr P. Fox | Freehills |
| For the Second and Third Defendants | No appearance by or on behalf of the Second and Third Defendants | |
| For Mr Burns | Mr N. P. De Young | Clarendon Lawyers |
TABLE OF CONTENTS
BURNS OBJECTED CATEGORIES............................................................................................... 1
THE LEGAL COSTS OF THIS PROCEEDING........................................................................... 2
ASSIGNMENT................................................................................................................................... 2
CONCLUSION................................................................................................................................... 4
SCHEDULE OF PARTIES................................................................................................................ 5
ANNEXURE A..................................................................................................................................... 6
HER HONOUR:
This is the return of the receivers’ application for indemnification out of the scheme property (“the lienable property”) of ten managed investment schemes, secured by equitable lien, for their remuneration for work performed and expenses reasonably incurred in taking steps for the care, protection, preservation and realisation of the assets and property of those schemes. This judgment is to be read in conjunction with the judgment delivered by the Court in Thackray & Ors v Gunns Plantations Limited & Ors.[1]
[1][2011] VSC 380.
Since the initial hearing, Mr Burns and the first defendant (“Gunns”) have reached agreement on the quantum of the receivers’ claim and all claimed categories of expense and remuneration, including the two categories previously the subject of objection by Mr Burns. No further objections have been raised pursuant to paragraph 9 of the orders made on 3 August 2011. The orders now sought are:
(a) an order confirming the receivers’ prima facie entitlement to the amounts claimed in respect of the two categories previously objected to by Mr Burns;
(b) final orders to the effect that the receivers are entitled to an indemnity secured by equitable lien upon…
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- Case
- [2011] VSC 417
- Decision Date
CaseChat Overview and Summary
The court began by examining the nature of the right to indemnity and the equitable lien, determining that these rights were indeed assignable. The court relied on established legal principles, confirming that the rights could be transferred under appropriate circumstances. The court then assessed the parties' agreement in principle to enter into an assignment deed, and whether this agreement created a real interest warranting declaratory relief. The court concluded that the prospective assignment deed would operate as the parties intended, and that the parties did have a real interest in the declaratory relief. Consequently, the court granted the relief sought by the applicant.
The final orders of the court established that the receiver had a prima facie entitlement to the indemnity secured by the equitable lien, as no objections were raised. The court further ruled that the right to indemnity and the equitable lien were assignable under the relevant legal principles. The court also declared that the prospective assignment deed would operate as intended by the parties, and that the parties had a real interest in the declaratory relief sought. These orders provided clarity and finality to the dispute, allowing the receiver to pursue the indemnity and lien as intended.
Orders
Orders of the court
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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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