Van Der Velde v Ng (No. 3)

Case [2009] FCA 1563


FEDERAL COURT OF AUSTRALIA

Van Der Velde v Ng (No. 3) [2009] FCA 1563

CORPORATIONS – consideration of whether particular arrangements for the transfer of a property and the ultimate transfer of that property constitute transactions rendered voidable and by operation of s 588FE of the Corporations Act 2001 (Cth) and whether the transfer of the property is rendered void by operation of s 468 of the Act

PRACTICE AND PROCEDURE – consideration of an application for judgment upon the failure of the first respondent to appear at the trial of the action

Corporations Act 2001 (Cth), ss 9, 468, 588FE(2), (3), (4), (5), (6A), 513A, 588FF

Liberty Funding Pty Ltd v Steele‑Smith [2004] NSWSC 1100

TERRY VAN DER VELDE AND DAVID STIMPSON and RIBY PTY LTD (ACN 081 153 219) IN LIQUIDATION AS TRUSTEE FOR THE JADE TRUST v KYM HON YOKE NG, THE OFFICIAL TRUSTEE AS TRUSTEE OF THE PROPERTY OF ROSS HASTINGS (A BANKRUPT) and RAMS MORTGAGE CORPORATION LIMITED ABN 48 065 912 932

QUD 405 of 2007

GREENWOOD J
22 DECEMBER 2009
BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 405 of 2007

BETWEEN:

TERRY VAN DER VELDE AND DAVID STIMPSON
First Applicant

RIBY PTY LTD (ACN 081 153 219) IN LIQUIDATION AS TRUSTEE FOR THE JADE TRUST
Second Applicant

AND:

KYM HON YOKE NG
First Respondent

THE OFFICIAL TRUSTEE AS TRUSTEE OF THE PROPERTY OF ROSS HASTINGS (A BANKRUPT)
Second Respondent

RAMS MORTGAGE CORPORATION LIMITED
ABN 48 065 912 932
Third Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

22 DECEMBER 2009

WHERE MADE:

BRISBANE

THE COURT DECLARES THAT:

1.The transfer by Riby Pty Ltd of real property situated at 15 Brookvale Drive, Underwood in the State of Queensland and more particularly described as Lot 188 on RP 826135, County of Stanley, Parish of Yeerongpilly, bearing the title reference 50176037, together with all improvements thereon (hereinafter described as the “Underwood property”) to Kym Hon Yoke Ng on or about 17 May 2006 constitutes a disposition of property of the company other than an exempt disposition made after the commencement of the winding up of Riby Pty Ltd and is a void disposition of property by operation of s 468 of the Corporations Act 2001 (Cth).

2.The Terms of Settlement being a document signed between Ross Hastings and the first respondent on 3 April 2006 and attached to orders of the Family Court of Australia as Exhibit “I’ to orders made on 10 April 2006 constitutes an agreement for transfer of the Underwood property rendered voidable by operation of s 588FE of the Corporations Act 2001 (Cth).

THE COURT ORDERS THAT:

3.Kym Hon Yoke Ng transfer vacant possession of the Underwood property in substantially the same condition it is in at the time of these orders to the liquidator of Riby Pty Ltd, Terry Van Der Velde and David Stimpson, by Friday, 22 January 2010 on condition that:

(a)RAMS Mortgage Corporation Limited (“RAMS”) is to be paid from the net sale proceeds…

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AGLC
Van Der Velde v Ng (No. 3) [2009] FCA 1563
Case
[2009] FCA 1563
Decision Date

CaseChat Overview and Summary

The case of Van Der Velde v Ng (No. 3) involved the applicants, Terry Van Der Velde and David Stimpson, acting as liquidators of Riby Pty Ltd, seeking to have certain transaction instruments declared voidable and for the Underwood property to be transferred to them. The dispute also included a claim against Kym Hon Yoke Ng for the void transfer of the Underwood property from Riby to Ms Ng. The case was heard in the Federal Court of Australia.

The central legal issues in this case involved the validity and voidability of certain transaction instruments under the Corporations Act, as well as the interpretation of the terms of a mortgage between Riby and RAMS Mortgage Corporation Limited. Specifically, the applicants sought to have transactions declared voidable under s 588FF(1) and to determine the enforceability of a mortgage transfer under s 468 of the Act. The court was also required to consider the costs incurred by RAMS in the proceedings and whether these costs fell within the terms of the mortgage.

The court, in its reasoning, confirmed the orders for the transfer of the Underwood property to the liquidators, subject to certain conditions, including the payment of outstanding mortgage debt and the preservation and maintenance of the property until its sale. The court also directed that the net sale proceeds be applied to satisfy the mortgage debt before any remaining balance was distributed in the winding up of Riby. The court further ruled that the questions regarding the construction of the mortgage and the costs incurred by RAMS would be decided separately. The court granted leave for Ms Ng's former legal representatives to withdraw and ordered that the affidavit filed by Ms Ng be admitted into evidence.

The final orders included the transfer of the Underwood property to the liquidators, the payment of costs by Ms Ng to the applicants, and the separation of issues concerning the mortgage and costs for future determination.

Orders

Orders of the court

3. Kym Hon Yoke Ng transfer vacant possession of the Underwood property in substantially the same condition it is in at the time of these orders to the liquidator of Riby Pty Ltd, Terry Van Der Velde and David Stimpson, by Friday, 22 January 2010 on condition that:

(a) RAMS Mortgage Corporation Limited (“RAMS”) is to be paid from the net sale proceeds (after payment of sale costs and commissions) of the Underwood property, the full amount then due from the first respondent to the third respondent by virtue of the terms of the RAMS mortgage, subject to the resolution of the separate question of construction of the RAMS mortgage to be determined as a separate issue in the proceedings;

(b) the first applicants take all steps necessary to effect the sale of the Underwood property at market value at the earliest available opportunity, and in any event, within a period of three months after the date of these orders;

(c) until such time as the Underwood property is sold according to this order:

(i) the first applicants are to take all reasonable steps in order to preserve and maintain the Underwood property;

(ii) forthwith upon these orders being entered, the first applicants are to obtain appropriate insurance over the improvements on the Underwood property against damage, fire and theft at a prudent value noting the third respondent as an interested party on the insurance cover;

(d) upon the sale of the Underwood property, the net sale proceeds after payment of all sale and transfer costs and commissions be applied in the following priority:

(i) as to the third respondent to satisfy the debt referred to in paragraph 3(a) hereof subject to the separate question mentioned therein;

(ii) as to the balance remaining, the first applicant to disperse according to law in the winding up of the second respondent;

(e) if the first respondent fails to effect the said transfer then the Registrar is authorised to sign all documents and take all steps necessary and incidental to allow these orders to take effect.

4. The first respondent shall pay the first and second applicants’ costs of and incidental to these proceedings including the costs incurred by the first and second applicants in implementing these orders.

5. The parties shall have liberty to apply.

6. Pursuant to Order 29, rule 2 of the Federal Court Rules, the questions of fact and law arising out of the claims made by the first and second applicants in the Third Further Amended Statement of Claim filed on 28 October 2009 against the first respondent shall be decided separately from those questions of fact and law in issue and to be decided between the first and second applicants and the third respondent in relation to the construction of the terms of a mortgage entered into between the third respondent and the first respondent, and whether the costs of these proceedings incurred by the third respondent fall within the terms of that mortgage.

7. The affidavit of the first respondent filed 10 December 2009 shall be admitted into evidence and marked “Exhibit A”.

Note:

Background

Background to the litigation

The applicants seek orders under s 588FF(1) declaring particular transaction instruments to be voidable and an order that the Underwood property be transferred to the applicants, as liquidator. The applicants seek a declaration that the transfer from Riby to Ms Ng is void by operation of s 468 of the Act.The procedural background The action has been the subject of many interlocutory applications and amendments to the Statement of Claim. The applicants frame their claims by a Third Further Amended Statement of Claim filed on 28 October 2009. Ms Ng filed a defence to an earlier Amended Statement of Claim, on 24 July 2009. She has been represented in the proceedings generally by Lillas & Loel Lawyers. On 26 October 2009, the applicants were given leave to deliver a Third Further Amended Statement of Claim. Ms Ng was to provide, by Order 3 of the directions, to the applicants, copies of all documents disclosed in her List of Documents, by Tuesday, 27 October 2009. Ms Ng and RAMS were to file an Amended Defence (if any) by 2 November 2009. The proceeding was set down for trial on 24 and 25 November 2009 and the following directions were made: the applicants were to provide Ms Ng and RAMS with witness statements by 30 October 2009; Ms Ng and RAMS were to provide their witness statements by 9 November 2009; applicants were to provide Ms Ng and RAMS with a List of Documents to be included in an agreed trial bundle by 10 November 2009; Ms Ng and RAMS were to respond with additional documents, if any, by 12 November 2009; and the applicants were to file an agreed trial bundle by 17 November 2009. The parties had suggested that mediation might be helpful and Order 9 of the directions of 26 October 2009 provided that the applicants and Ms Ng were to attend and engage in a mediation to be conducted by the Federal Court by no later than 16 November 2009. The proceeding was listed for review on Wednesday, 18 November 2009. The mediation was unsuccessful. On 18 November 2009, the matter came before Collier J for review. On that day, her Honour made directions for trial. The trial date of 25 November 2009 was confirmed although the proceeding was then listed for one day only. The directions were these: the evidence at the trial would be given by affidavit; the applicants were to provide RAMS with a List of Documents for inclusion in the agreed trial bundle by 18 November 2009; RAMS was to respond by 19 November 2009; the trial bundle was to be filed by the applicants by 23 November 2009; any further affidavits on the question of whether the costs of RAMS fall within the terms of the mortgage were to be filed by 23 November 2009; and the parties were to file written submissions by 24 November 2009. On that day, Lillas & Loel sought leave to withdraw as the lawyers representing Ms Ng. By Order 11 made on 18 November 2009, the Court ordered:11.The court grants leave to Lillas & Loel Solicitors of West End to cease acting for the first respondent as of 18 November 2009 in accordance with Order 45, rule 7 of the Federal Court Rules without derogating from the obligations of Lillas & Loel Solicitors in paragraphs 9 and 10 of these Orders.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GREENWOOD J

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Ratio Decidendi

Legal Principle Established

Established by: GREENWOOD J

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