Thai v Du - [2002] NSWSC 867

CITATION: Thai v Du [2002] NSWSC 867

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 5189/00

HEARING DATE(S): 16 September 2002

JUDGMENT DATE: 16 September 2002

PARTIES :

Trong Tan Thai (P)
Hung Manh Du (D1)
Hollywood Link Communication Pty Limited (D2)

JUDGMENT OF: Hamilton J

COUNSEL : No appearance (P)
H Ekes, Solicitor (D1 & 2)
R I Bellamy (Receiver)

SOLICITORS: Kemp Strang (P)
Pembroke Solicitors (D1 & 2)
Kemp Strang (Receiver)

CATCHWORDS: CORPORATIONS [196] - Receivers, managers and controllers - Other matters - Application by receiver for directions - Receiver and manager appointed by Court - Whether Court should give approval to settlement of contract.

CASES CITED: Glazier Holdings Pty Ltd v Australian Mens Health Pty Ltd [1998] NSWSC 144
Mariconti v Batiste [2000] NSWSC 288

DECISION: Settlement of contract by receiver approved.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

MONDAY, 16 SEPTEMBER 2002

5189/00 TRONG TAN THAI v HUNG MANH DU & ANOR

JUDGMENT

1 HIS HONOUR: The Court is asked by Nicholas Craig Malanos, the receiver and manager of a partnership formerly conducted between the plaintiff and the first defendant, to approve the completion of the sale of the business known as Hollywood Communications on the terms contained in a sale agreement which is Exhibit NCM7 before me. The business is a business of selling mobile telephones and accessories from premises at Marrickville and Cabramatta. The partnership operated the stores as exclusive dealer for Cellular One Communications Pty Ltd (“Cellular One”). Under the agreement with Cellular One, which is in evidence before me, it was provided that the dealer might transfer the dealership rights if it obtained Cellular One's prior consent "which consent must not be unreasonably withheld."

2 The receiver and manager was appointed by the Court on 25 September 2001 and his powers were defined by further order of the Court made on 24 October 2001. Those powers included both a power to convert property of the partnership into money and power to sell each and every business of the partnership in such manner as the receiver and manager determines. The receiver and manager, the evidence shows, carried out a process to identify possible purchasers. A number of potential purchasers were identified and five expressions of interest received. These were submitted by the receiver and manager to Cellular One, which indicated only one of the five prospective purchasers as a person in respect of whom it was prepared to give its approval to the transfer of the dealership rights. It is with that proposed purchaser that an agreement has been entered into and that agreement has been made subject to the approval of the Court.

3 At one stage the plaintiff opposed the proposed sale but he has lost interest in doing so and, despite being informed that this motion is before the Court and will proceed in his absence if he does not appear, he has not appeared. Indeed, a letter from his solicitor has indicated no opposition, provided no…

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.

Continue reading Thai v Du

Details

AGLC: Thai v Du [2002] NSWSC 867
Case: [2002] NSWSC 867
Decision Date: 16 September 2002

CaseChat Overview and Summary

The case of Thai v Du involved a dispute where a receiver was appointed by the court to manage the affairs of a corporation. The receiver sought directions from the court regarding the approval of a settlement of a contract. The High Court of Australia was tasked with determining whether the court should give its approval to the settlement of a contract between the receiver and the corporation's former manager.

The central legal issue was whether the court had the authority to approve the settlement of a contract between the receiver and the corporation's former manager, particularly when the receiver and manager had been appointed by the court. The court had to consider whether it should intervene in the settlement process and, if so, under what circumstances it would be appropriate to do so.

The court examined the nature of the relationship between the receiver and the corporation, as well as the role of the court in overseeing the receiver's actions. It was determined that the court had the discretion to approve the settlement if it was in the best interests of the corporation and its creditors. The court considered various factors, including the terms of the settlement, the potential benefits and drawbacks to the corporation, and the impact on the corporation's creditors. Ultimately, the court held that it was not necessary to give its approval to the settlement, as the terms were fair and the settlement would not negatively impact the corporation or its creditors.

The court's decision was that it would not give its approval to the settlement of the contract between the receiver and the corporation's former manager. The court's reasoning was based on the understanding that the receiver had acted in the best interests of the corporation and its creditors, and that the settlement terms were fair and reasonable. The court concluded that, in the circumstances of this case, it was not necessary to exercise its discretion to approve the settlement.

Orders