Zurich Australian Workers Compensation Ltd v. Balmain Joinery (Australia) P/L [1994] FCA 734

JUDGMENT No. sou Sato actct.,

FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY) No NG 3072 of 1994 GENERAL DIVISION )

BETWEEN:

ZURICH AUSTRALIAN WORKERS COMPENSATION LIMITED Applicant

AND:

BALMAIN JOINERY (AUSTRALIA) PTY

LIMITED Respondent CORAM: SACKVILLE J. PLACE: SYDNEY DATE: 5 OCTOBER 1994 14 OCT 1994 FEDERAL COURT OF AUSTRALIA REAS F R PRINCIPAL

REGISTRY

Mk HIS HONOUR: In this matter Mr Marshall appears on behalf of the

liquidator of Balmain Joinery (Australia) Pty Limited ("the company"). Mc Marshall seeks orders that are set out in an

application which is said to be an application under section 474

of the Corporations Law. A number of orders are sought ex parte.

e First, a declaration that a Mercedes Benz 300E 1993 model, registration number ABR63A is property which the company in

liquidation is entitled to.

e Secondly, a declaration that the motor vehicle vest in the liquidator. e Thirdly, a declaration that the applicant be entitled to

take into the applicant's custody and control the motor

vehicle forthwith.

Further orders are sought in relation to costs.

Mr Marshall has taken me to the evidence which consist of affidavits of William Glynn Johns and of Ian James McCavin. The affidavit material suggests that the following are the facts. The Mercedes vehicle was the subject of an "assets purchase agreement" entered into at some time in 1993 (the copy of the agreement does not have any legible date). The owner under the agreement was Australian Guarantee Corporation Limited ("AGC") and the company was the hirer. Under the terms of the agreement, the hirer acknowledged that the goods would remain the sole

property of the owner (that is, AGC) and that the hirer would be

a bailee only on the terms of the agreement.

The evidence indicates that the liquidator was appointed to the company in August 1994. A letter dated 26 September 1994 from AGC to the company indicates that there had been default in the obligations of the company under the agreement. The default was said to be in monthly rental instalments totalling $21,610.37. The letter indicated that the hiring of goods under the assets purchase agreement had been terminated. Claims were made against