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 ApplicantRIBY PTY LTD (ACN 081 153 219) IN LIQUIDATION AS TRUSTEE FOR THE JADE TRUST
Second ApplicantAND: KYM HON YOKE NG
First RespondentTHE OFFICIAL TRUSTEE AS TRUSTEE OF THE PROPERTY OF ROSS HASTINGS (A BANKRUPT)
Second RespondentRAMS 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 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”.
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: GREENWOOD J
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