Forest Marsh Pty Ltd v Pleash [2011] FCA 134

FEDERAL COURT OF AUSTRALIA

Forest Marsh Pty Ltd v Pleash [2011] FCA 134 Citation: Forest Marsh Pty Ltd v Pleash [2011] FCA 134

Parties: FOREST MARSH PTY LTD (ACN 009 545 733) and STEPHEN MICHAEL POWELL v BLAIR PLEASH and BIBBY FINANCIAL SERVICES AUSTRALIA PTY LIMITED (ACN 101 657 041)

File number: NSD 1328 of 2009

Judge: YATES J

Date of judgment: 23 February 2011

Catchwords: CORPORATIONS – application to remove receiver and manager – appointment pursuant to charge – alleged breaches of statutory duties – alleged breach of general law duties - alleged breach of duty to act in good faith – alleged breach of duty to terminate receivership – discussion of duties of receiver to chargor – discussion of content of receiver's duty to terminate receivership – whether breaches made out on facts relied on CORPORATIONS – application for inquiry into receiver's conduct – alleged improper conduct in continuing receivership – whether inquiry would be ordered when grounds for inquiry have been fully litigated CONSUMER LAW – consumer protection – misleading or deceptive conduct in relation to payout amount – initial failure to notify of contingent claim – consideration of what constitutes relevant conduct – trifling, ephemeral and inconsequential conduct COSTS – indemnity costs – adjournment of hearing to replead case

Legislation: Corporations Act 2001 (Cth) s 180, s 181, s 182, s 423 Competition and Consumer Act 2010 (Cth) Sch 2 s 18

Cases cited: Australian Securities & Investments Commission v Lanepoint Enterprises Pty Ltd (2006) 64 ATR 524 Bank of New South Wales v Federal Commissioner of Taxation (1979) 145 CLR 438 Bowesco Pty Ltd v Cronin (2008) 223 FLR 21 Expo International Pty Ltd (Receivers and Managers Appointed) (In Liquidation) v Chant [1979] 2 NSWLR 820 Re S & D International Pty Ltd (In Liquidation) (Receivers and Managers Appointed) v MIG Property Services Pty Ltd [2009] VSC 225