Williams, C.J. & Anor v National Australia Bank Ltd [1995] FCA 364

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION No VG 3245 of 1995

IN THE MATTER of Section 418A of the Corporations Law and IN THE MATTER of SELMOORE PTY LTD (ACN 053 244 152) (RECEIVER AND MANAGER APPOINTED) CAROL JANE WILLIAMS and BARRY JOHN WILLIAMS Applicants -and- BARRY LORNE JENNER First Respondent -and- NATIONAL AUSTRALIA BANK LIMITED Second Respondent Coram: Olney J Place: Melbourne Judgment 30 May 1995 Reasons 1 June 1995 published: REASONS FOR JUDGMENT On 12 May 1995 the applicants filed an application seeking, inter alia, orders pursuant to s 418A of the Corporations Law declaring that: a) the purported appointment of the first respondent (Jenner) as receiver and manager of Selmoore Pty Ltd (Selmoore) was invalid; b) Jenner did not validly enter into possession or assume control of the property of Selmoore under the terms of registered charge 439909. Section 418A of the Corporations Law provides: 418A(1) Where there is doubt, on a specific ground, about: (a) whether a purported appointment of a person, after the commencement of this section, as receiver of property of a corporation is valid; or (b) whether a person who has entered into possession, or assumed control, of property of a corporation after the commencement of this section did so validly under the terms of a charge on that property; the person, the corporation or any of the corporation's creditors may apply to the Court for an order under subsection (2). (2) On an application, the Court may make an order declaring whether or not: (a) the purported appointment was valid; or (b) the person entered into possession, or assumed control, validly under the terms of the charge; as the case may be, on the ground specified in the application or on some other ground. The applicants have brought the proceeding in their capacity as directors of Selmoore. It would seem that they have no standing in that capacity to seek relief under s 418A. Be that as it may, the question of standing has not at this stage been put in issue by the respondents and the matter has proceeded thus far on the unstated assumption that the applicants have the necessary standing to institute the proceeding. The applicants have filed in support of the application affidavits of: a) Carol Jane Williams (Carol Williams) (the first-named applicant and a director of Selmoore) sworn 12 May 1995; b) Tracey Lee Williams (Tracey Williams) (Carol Williams' daughter) sworn 12 May 1995; c) Geraldine Bradley Dann (Ms Dann) (a solicitor employed by the applicants' solicitors) sworn 12 May 1995. The application was returnable on 18 May 1995. On that occasion orders were made for: a) the filing of affidavits in opposition to the application by 4.00pm on 24 May 1995; b) the filing of affidavits in reply by 4.00pm on 31 May 1995; c) mutual discovery by 4.00pm on 7 June 1995; d) the adjournment of the directions hearing to 22 June 1995. In addition, the applicants were given leave to file and serve a notice of motion returnable on 25 May 1995 seeking orders relating to the property of the company. On 19 May 1995 the applicants filed notice of a motion (which was in fact made returnable on 26 May 1995) seeking an order that Jenner be restrained from selling or otherwise dealing with the assets and undertaking of Selmoore until the hearing and determination of the application. A further affidavit of Carol Williams sworn 24 May 1995 was filed in support of the motion, as was a further affidavit of Ms Dann sworn 26 May 1995.