Van Der Velde v Ng (No. 3) [2009] FCA 1563

FEDERAL COURT OF AUSTRALIA

Van Der Velde v Ng (No. 3) [2009] FCA 1563 CORPORATIONS – consideration of whether particular arrangements for the transfer of a property and the ultimate transfer of that property constitute transactions rendered voidable and by operation of s 588FE of the Corporations Act 2001 (Cth) and whether the transfer of the property is rendered void by operation of s 468 of the Act PRACTICE AND PROCEDURE – consideration of an application for judgment upon the failure of the first respondent to appear at the trial of the action Corporations Act 2001 (Cth), ss 9, 468, 588FE(2), (3), (4), (5), (6A), 513A, 588FF

Liberty Funding Pty Ltd v Steele‑Smith [2004] NSWSC 1100

TERRY VAN DER VELDE AND DAVID STIMPSON and RIBY PTY LTD (ACN 081 153 219) IN LIQUIDATION AS TRUSTEE FOR THE JADE TRUST v KYM HON YOKE NG, THE OFFICIAL TRUSTEE AS TRUSTEE OF THE PROPERTY OF ROSS HASTINGS (A BANKRUPT) and RAMS MORTGAGE CORPORATION LIMITED ABN 48 065 912 932

QUD 405 of 2007

GREENWOOD J

22 DECEMBER 2009

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

general division QUD 405 of 2007

BETWEEN: TERRY VAN DER VELDE AND DAVID STIMPSON

First Applicant

RIBY PTY LTD (ACN 081 153 219) IN LIQUIDATION AS TRUSTEE FOR THE JADE TRUST

Second Applicant

AND: KYM HON YOKE NG

First Respondent

THE OFFICIAL TRUSTEE AS TRUSTEE OF THE PROPERTY OF ROSS HASTINGS (A BANKRUPT)

Second Respondent

RAMS MORTGAGE CORPORATION LIMITED

ABN 48 065 912 932

Third Respondent

JUDGE: GREENWOOD J

DATE OF ORDER: 22 DECEMBER 2009

WHERE MADE: BRISBANE

THE COURT DECLARES THAT:

1. The transfer by Riby Pty Ltd of real property situated at 15 Brookvale Drive, Underwood in the State of Queensland and more particularly described as Lot 188 on RP 826135, County of Stanley, Parish of Yeerongpilly, bearing the title reference 50176037, together with all improvements thereon (hereinafter described as the "Underwood property") to Kym Hon Yoke Ng on or about 17 May 2006 constitutes a disposition of property of the company other than an exempt disposition made after the commencement of the winding up of Riby Pty Ltd and is a void disposition of property by operation of s 468 of the Corporations Act 2001 (Cth). 2. The Terms of Settlement being a document signed between Ross Hastings and the first respondent on 3 April 2006 and attached to orders of the Family Court of Australia as Exhibit "I' to orders made on 10 April 2006 constitutes an agreement for transfer of the Underwood property rendered voidable by operation of s 588FE of the Corporations Act 2001 (Cth). THE COURT ORDERS THAT: 3. Kym Hon Yoke Ng transfer vacant possession of the Underwood property in substantially the same condition it is in at the time of these orders to the liquidator of Riby Pty Ltd, Terry Van Der Velde and David Stimpson, by Friday, 22 January 2010 on condition that: (a) RAMS Mortgage Corporation Limited ("RAMS") is to be paid from the net sale proceeds (after payment of sale costs and commissions) of the Underwood property, the full amount then due from the first respondent to the third respondent by virtue of the terms of the RAMS mortgage, subject to the resolution of the separate question of construction of the RAMS mortgage to be determined as a separate issue in the proceedings; (b) the first applicants take all steps necessary to effect the sale of the Underwood property at market value at the earliest available opportunity, and in any event, within a period of three months after the date of these orders; (c) until such time as the Underwood property is sold according to this order: (i) the first applicants are to take all reasonable steps in order to preserve and maintain the Underwood property; (ii) forthwith upon these orders being entered, the first applicants are to obtain appropriate insurance over the improvements on the Underwood property against damage, fire and theft at a prudent value noting the third respondent as an interested party on the insurance cover; (d) upon the sale of the Underwood property, the net sale proceeds after payment of all sale and transfer costs and commissions be applied in the following priority: (i) as to the third respondent to satisfy the debt referred to in paragraph 3(a) hereof subject to the separate question mentioned therein; (ii) as to the balance remaining, the first applicant to disperse according to law in the winding up of the second respondent; (e) if the first respondent fails to effect the said transfer then the Registrar is authorised to sign all documents and take all steps necessary and incidental to allow these orders to take effect. 4. The first respondent shall pay the first and second applicants' costs of and incidental to these proceedings including the costs incurred by the first and second applicants in implementing these orders. 5. The parties shall have liberty to apply. 6. Pursuant to Order 29, rule 2 of the Federal Court Rules, the questions of fact and law arising out of the claims made by the first and second applicants in the Third Further Amended Statement of Claim filed on 28 October 2009 against the first respondent shall be decided separately from those questions of fact and law in issue and to be decided between the first and second applicants and the third respondent in relation to the construction of the terms of a mortgage entered into between the third respondent and the first respondent, and whether the costs of these proceedings incurred by the third respondent fall within the terms of that mortgage. 7. The affidavit of the first respondent filed 10 December 2009 shall be admitted into evidence and marked "Exhibit A". Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Court search on the Court's website.