Lechmere Financial Corporation v Aspermont Limited [2004] FCA 36

FEDERAL COURT OF AUSTRALIA

Lechmere Financial Corporation v Aspermont Limited [2004] FCA 36 CORPORATIONS – insolvency – application to wind up company – prior judgment exercising discretion not to wind up company upon payment of sums into Court – delivery of authority to the Court for payment of sums to plaintiff – notice of application by intervenor to dispute ownership of moneys paid into Court – direction given to Registrar to withhold payment to plaintiff pending determination of intervenor's application – whether intervenor should be granted leave in the winding up application – whether intervenor should be granted leave to make oral application – relevance of intervenor's involvement in defendant – application for leave to intervene refused – direction to Registrar revoked Corporations Act 2001 (Cth) s 465C Federal Court Rules O 25 r 1 Federal Court (Corporations) Rules 2000 r 2.9 Bambi Restaurants, Ltd, Re [1965] 2 All ER 79 applied Kent v Aspermont Ltd [2003] WASC 107 cited Lechmere Financial Corporation v Aspermont Limited [2003] FCA 1138 cited Ocean City Ltd v Southern Oceanic Hotels Pty Ltd (1993) 10 ACSR 483 distinguished QBS Pty Ltd, In re [1967] QdR 218 distinguished LECHMERE FINANCIAL CORPORATION v ASPERMONT LIMITED W3003 of 2003 RD NICHOLSON J 30 JANUARY 2004 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W3003 OF 2003

IN THE MATTER OF ASPERMONT LIMITED

ACN 000 375 048

BETWEEN: LECHMERE FINANCIAL CORPORATION

PLAINTIFF

AND: ASPERMONT LIMITED

ACN 000 375 048

DEFENDANT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 30 JANUARY 2004

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application on behalf of Andrew Leslie Kent to be heard in the winding up proceeding be refused. 2. The application on behalf of Andrew Leslie Kent for orders pursuant to O 25 r 1 of the Federal Court Rules be refused. 3(a). The order dated 12 November 2003 directing the District Registrar not to act on the authority received pursuant to order 5 dated 20 October 2003 and not to pay the monies held by the Court to the plaintiff until the hearing and determination of the application by Mr Kent is hereby revoked. 3(b). The money paid into Court by the defendant (being the sum of $955 500) be paid to the plaintiff or as it directs. 4. Andrew Leslie Kent do pay the costs of the plaintiff and defendant of the applications referred to in orders 1 and 2. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.