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 various parties under guarantees totalling $130,306. In my Opinion there are two fundamental difficulties with this application. The first is that declarations in final form are sought ex parte. No other relief has been sought by Mr Marshall on behalf of the liquidator. The evidence indicates that the motor vehicle is now in the possession of James Cameron who apparently has an association with an adviser to the directors of the company. Mr Cameron has not been joined in the proceedings and has no notice of them. While it might be thought unlikely that Mr Cameron has a genuine entitlement to the vehicle, one would have thought that declarations of right could hardly be made without the possessor of the vehicle having an opportunity to be heard. Secondly, and perhaps more importantly for present purposes, the evidence seems to me to indicate that the proper applicant is not the liquidator, but AGC. AGC has terminated the assets purchase agreement. It has remained the owner of the vehicle at all material times. The rights of the company as bailee under the agreement have been terminated. The evidence indicates that the company is no longer in possession of the vehicle. In these circumstances I find it difficult to understand how the vehicle answers the description of property to which the company "is, or appears to be, entitled" within the meaning of that phrase as used in section 474 of the Corporations Law. In any event, it is not clear that section 474 confers an entitlement in the liquidator, independently of the entitlement that would arise by virtue of the company's property in particular assets. Insofar as the application relies upon section 474(2) of the Corporation Law to vest property in the liquidator, there is authority that the sub section should be relied upon only where property is unarguably the property of the company: Evans and Bristile Ltd (1992) 10 ACLC 1415. On the evidence that has been presented thus far, it does not seem to me that the liquidator has any or any sufficient title to the car to support this application. Mr Marshall has directed my attention to the fact that there is an authority in the form of a letter from AGC to the liquidator, dated 4 October 1994. Yet that letter itself asserts that the vehicle remains the property of AGC. All the letter does is to request on behalf of AGC the assistance of the liquidator in achieving the return of the vehicle. That seems to me to fall far short of conferring title or property in the vehicle, such as would justify an application for relief at the suit of the liquidator. In the circumstances I propose simply to dismiss the application that has been brought today. No doubt if the liquidator wishes to bring a further application he may do so. Alternatively it May be that AGC ought to be regarded as the appropriate applicant in any proceedings in respect of which relief is sought relating to the vehicle. I therefore dismiss this application. I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville. Associate: Lee Braet Dated: October, 1994 Heard: 5 October 1994 Place: Sydney Decision: 5 October 1994 Appearances: Mr Marshall instructed by Kemp Strang & Chippindall, Solicitors, appeared for the applicant. No appearance by the respondent.