Cacho v Zohar [2005] FCA 1241

FEDERAL COURT OF AUSTRALIA

Cacho v Zohar [2005] FCA 1241 EQUITY – interlocutory injunction – application by liquidator to restrain exercise of powers of purported receivers and managers of company – voidability of transactions from which powers of receiver and manager derive arguable – serious question to be tried and balance of convenience favouring relief CORPORATIONS LAW – interlocutory relief – voidable transactions – powers of receivers and managers – whether interlocutory restraint appropriate Corporations Act 2001 (Cth) ss 588FB, 588FC, 588FE, 588FF Australian Broadcasting Corporation v Lenah Games Meats Pty Ltd (2001) 208 CLR 199 cited Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618cited Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 cited Demondrille Nominees Pty Ltd v Shirlaw (1997) 25 ACSR 535 referred to Tosich Construction Pty Ltd (in liq) v Tosich (1997) 78 FCR 363 referred to

RICARDO CACHO AS LIQUIDATOR OF PRECAST PRESTRESSED BUILDINGS PERTH PTY LTD v OREN ZOHAR, BRIAN KEITH MCMASTER and DIPLOMA CONSTRUCTION PTY LTD

WAD 219 of 2005

NICHOLSON J

2 SEPTEMBER 2005

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 219 OF 2005

BETWEEN: RICARDO CACHO

AS LIQUIDATOR OF PRECAST PRESTRESSED BUILDINGS PERTH PTY LTD

(ACN 012 746 449) (IN LIQUIDATION)

APPLICANT

AND: OREN ZOHAR & BRIAN KEITH MCMASTER

FIRST RESPONDENTS

DIPLOMA CONSTRUCTION PTY LTD

(ACN 008 939 179)

SECOND RESPONDENT

JUDGE: NICHOLSON J

DATE OF ORDER: 2 SEPTEMBER 2005

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The first respondents are restrained jointly and severally until further order of this Court and an injunction is granted restraining them by themselves, their servants, agents or otherwise from exercising or purporting to exercise any power as receivers and managers of Precast Prestressed Buildings Perth Pty Ltd (ACN 012 746 449) (In Liquidation) ('PPB') pursuant to a Fixed and Floating Charge granted by PPB to the second respondent on 23 April 2004 or from holding themselves out as receivers and managers over PPB. 2. There be liberty to apply on 48 hours notice. 3. The costs of the application be paid by the first and second respondents jointly and severally. 4. The applicant have leave to uplift the affidavit of R. Cacho filed 19 August 2005. 5. The matter be listed for directions before the District Registrar on 9 September 2005 at 3.00 pm. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.