In the matter of Maspro Industries Pty Limited; Phillips v Quinton [2006] FCA 669

FEDERAL COURT OF AUSTRALIA

In the matter of Maspro Industries Pty Limited; Phillips v Quinton [2006] FCA 669

IN THE MATTER OF MASPRO INDUSTRIES PTY LIMITED; PHILLIPS V QUINTON

NSD 621 of 2006

STONE J

29 MAY 2006

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 621 OF 2006

BETWEEN: SUZANNE PHILLIPS

PLAINTIFF

AND: HAROLD VICTOR QUINTON

DEFENDANT

JUDGE: STONE J

DATE OF ORDER: 29 MAY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The plaintiff has leave to file in Court the amended interlocutory process handed up in Court by the plaintiff on 29 May 2006. 2. Harold Victor Quinton be removed as a defendant in this proceeding. 3. Maria Crysanthou be added as a defendant in this proceeding. 4. Maria Crysanthou as executrix of the estate of Mr Harold Victor Quinton be added as a defendant in this proceeding. 5. Pursuant to s 5(4)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), this proceeding be transferred to the Supreme Court of New South Wales. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 621 OF 2006

BETWEEN: SUZANNE PHILLIPS

PLAINTIFF

AND: HAROLD VICTOR QUINTON

DEFENDANT

JUDGE: STONE J

DATE: 29 MAY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 7 April 2006 Lindgren J dismissed an application made by the plaintiff, Ms Phillips, for an interlocutory order in the nature of a Mareva injunction and an ancillary disclosure order in support of the Mareva order. His Honour summarised his understanding of the events leading to the above application at [2]-[5] of his reasons as follows: 'The events in question apparently go back to 22 March 1980 when Ms Phillips's late father, Ivan George Phillips, was hospitalised: '... suffering from anaemia and the onset of senile dementia'. Apparently, her late father granted a power of attorney to Mr Quinton, who also purported to act as a director or perhaps governing director of Maspro Industries Pty Ltd. Ms Phillips alleges that Mr Quinton acted fraudulently, apparently in many respects. One is that he 'used the voting power of shares held in trust to liquidate Maspro Industries Pty Ltd'. As I understand it, there is an allegation that the power of attorney was obtained from her late father at a time when his mental condition did not enable him validly to grant a power of attorney. As well, apparently there is an allegation that Mr Quinton used his position as a director or governing director of Maspro Industries Pty Ltd in various ways to procure benefits for himself. In response to questions by me, Ms Phillips has informed me that: · there have been proceedings in the Supreme Court of New South Wales between herself and Mr Quinton (the nature of which is not known to me); · there was a hearing before Powell J in that Court; · the question of Mr Quinton's conduct as a director of the company was not dealt with in that proceeding; · Ms Phillips had legal representation in the Supreme Court but she was not satisfied with her former lawyers' conduct of her case. The chronology handed up suggests that the last event to have occurred was in 1992, although Ms Phillips has referred to some later events in the 1990s and in 2002.' 2 His Honour concluded that he was not satisfied that the matter called for urgent ex parte relief and dismissed the application. His Honour commented at [6] that the plaintiff had not pointed to any threat by Mr Quinton to dissipate assets that would justify ex parte relief. His Honour added that Ms Phillips relied on 'what she says is a long course of fraudulent concealment'. 3 The plaintiff made a further application for interlocutory relief before me today. She told me that, since the application before Lindgren J was heard, Mr Quinton had died and in support, provided a newspaper announcement concerning an application for a grant of probate in respect of Mr Quinton's estate. She sought and was given leave to file in Court an amended interlocutory process seeking to join as a party to the proceeding Maria Crysanthou both in her personal capacity and as executrix of Mr Quinton's estate. Accordingly, it is appropriate that, pursuant to O 6 r10 of the Federal Court Rules, Mr Quinton be removed as a defendant in this matter and that Ms Crysanthou be added as a defendant in her capacity as executrix of Mr Quinton's estate and in her personal capacity. The only claim that Ms Phillips made as to why interlocutory relief that had so recently been refused should now be granted was based on Mr Quinton's death and the fact that the application for probate was imminent. I am not satisfied that this difference in circumstances makes interlocutory relief more urgent than before; if anything I would suggest the tendency is the other way. I am therefore not prepared to grant interlocutory relief. 4 The circumstances underlying the plaintiff's claim suggested to me that this is a matter that might more appropriately be dealt with in the Supreme Court of New South Wales. As presently informed it seems to me to raise not only issues of Corporations law but also issues of succession and probate as well as (alleged) criminal fraud. I raised with the plaintiff the possibility of my making an order that the matter be transferred to the Supreme Court of New South Wales pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 5(4)(b)(iii). Ms Phillips resisted this proposal on the grounds that there had been previous litigation in the Supreme Court in which the Corporations law issue had not been raised. I have no further information about these earlier proceedings although they were mentioned by Lindgren J who was similarly uninformed. Ultimately Ms Phillips was not able to offer any coherent reason why such an order should not be made. 5 The purpose of a cross-vesting order is to provide the parties with the forum in which complaints can be ventilated and disputes resolved in the most efficient, cost-effective and fair way. In my view the issues Ms Phillips raises would be most effectively dealt with in the Supreme Court of New South Wales and it is in the interests of justice that the matter be transferred to that Court. Accordingly I propose to order that this be done. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.