McCluskey v Karagiozis [2002] FCA 1137

FEDERAL COURT OF AUSTRALIA

McCluskey v Karagiozis [2002] FCA 1137

CORPORATIONS – application by administrators for directions concerning the validity of the transfer of employment of employees between companies in a corporate group as part of a corporate restructure – whether employees expressly or impliedly assented to the transfer – whether the employees remained employees of the pre-restructure companies – whether employees are creditors of the pre-structure companies in respect of their employee entitlements

Corporations Act 2001 (Cth) ss 447D(1) Federal Court of Australia Rules 1977 (Cth) O 6 r 13

Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 – applied

IN THE MATTER OF COOGI NOMINEES PTY LTD (Administrators Appointed)

ACN 005 267 158 and others (according to the Schedule attached) PETER DAMIEN McCLUSKEY AND GEORGE GEORGES v KETTY KARAGIOZIS, DONG IL CORPORATION AND COOGI CASA PTY LTD (ACN 004 930 571) V3152 OF 2002 MERKEL J 12 SEPTEMBER 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 3152 OF 2002

IN THE MATTER OF COOGI NOMINEES PTY LTD (Administrators Appointed)

ACN 005 267 158 and others (according to the Schedule attached)

BETWEEN: PETER DAMIEN McCLUSKEY

FIRST PLAINTIFF

GEORGE GEORGES

SECOND PLAINTIFF

AND: KETTY KARAGIOZIS

FIRST DEFENDANT

DONG IL CORPORATION

SECOND DEFENDANT

COOGI CASA PTY LTD (ACN 004 930 571)

THIRD DEFENDANT JUDGE: MERKEL J

DATE OF ORDER: 12 SEPTEMBER 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. For the purposes of the administration of each of the companies in the schedule attached including, but not limited to, the convening and holding of meetings of creditors of those companies and voting at those meetings: (a) each employee, apart from Mrs Jaqueline Miller, identified in the schedule annexed to the affidavit of Craig Charles Hunter sworn 9 September 2002 as annexure "CH 8" ("the Schedule") as having been employed by Coogi Nominees Pty Ltd at 1 March 2000 and employed by CA Manufacturing Pty Ltd, Coogi Australia Pty Ltd, Coogi Australia Retail Pty Ltd or Coogi Holdings Pty Ltd as at 3 July 2002, is to be treated as having continued to be employed by Coogi Nominees Pty Ltd (administrators appointed) at all material times since commencing employment with that company; (b) each employee identified in the Schedule as having been employed by Coogi Casa Pty Ltd at 1 March 2000 and employed by Coogi Australia Pty Ltd as at 3 July 2002, is to be treated as having continued to be employed by Coogi Nominees Pty Ltd (administrators appointed) at all material times since commencing employment with that company; (c) each employee, apart from Mrs Mardi Holton, identified in the Schedule as having been employed by Coogi Connections Pty Ltd at 1 March 2000 and employed by Coogi Australia Retail Pty Ltd as at 3 July 2002, is to be treated as having continued to be employed by Coogi Connections Pty Ltd (administrators appointed) at all material times since commencing employment with that company; and (d) Mrs Mardi Holton, being an employee identified in the Schedule as having been employed by Coogi Connections Pty Ltd at 1 March 2000 and employed by Coogi Australia Retail Pty Ltd as at 3 July 2002, is to be treated as having continued to be employed by Coogi Nominees Pty Ltd (administrators appointed) at all material times since commencing employment with that company. 2. (a) The costs of all parties of this application be costs in the administration of Coogi Nominees Pty Ltd (administrators appointed); (b) The costs are to be calculated on the basis that they are to include all costs except in so far as they are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, the parties will be completely indemnified for their costs. 3. Liberty is reserved to the plaintiffs to apply to the Court for an order that the costs referred to in para 2 of these orders be paid by a non-party.