Combis and Staatz as Joint and Several Liquidators of RB Hospitality Holdings Pty Limited (In Liquidation) v Lee [2020] NSWSC 1727

Supreme Court New South Wales

Medium Neutral Citation: Combis and Staatz as Joint and Several Liquidators of RB Hospitality Holdings Pty Limited (In Liquidation) v Lee [2020] NSWSC 1727 Hearing dates: 16 November 2020 Date of orders: 3 December 2020 Decision date: 03 December 2020 Jurisdiction: Common Law Before: Johnson J Decision: See answer to separate questions at [106]. Catchwords: REAL PROPERTY – mortgagee claim for possession of land arising from alleged default under mortgage – contractual arrangement between parties secured by mortgage – where former director of company requested liquidators to continue trading hotel business and provided detailed indemnity to liquidators as part of the contractual arrangement – determination of separate questions – whether liquidator fees are covered or caught by contractual arrangement and whether amount is indemnified – whether any cash surplus owed by the Defendant is covered or caught by contractual arrangement and whether amount is indemnified – where Defendant's contractual commitments to Plaintiffs are exhaustive and clear under terms of the contractual arrangement – held that liquidator fees and cash surplus are covered or caught by contractual arrangement and that both amounts are capable of being indemnified against – whether there can be an inquiry in Possession List proceedings as to the reasonableness of liquidator fees – held that contractual arrangement involved complete and immediate indemnity so that inquiry cannot take place as part of Possession List proceedings – responses given to separate questions Legislation Cited: Corporations Act 2001 (Cth) Civil Procedure Act 2005 (NSW) Insolvency Law Reform Act 2016 (Cth) Real Property Act 1900 (NSW) Supreme Court (Corporations) Rules 1999 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Catalyst Provisional Lending Pty Limited and Ors v Dick-Telfar and Anor [2020] NSWSC 79 Combis & Staatz as joint and several liquidators of RB Hospitality Holdings Pty Ltd (In Liquidation) v Lee [2020] NSWSC 960 Coca-Cola Financial Corporation v Finsat International Ltd [1998] QB 43 Commonwealth Bank of Australia v MLD Financial Services & Management Pty Ltd [2015] NSWSC 1476 Continental Illinois National Bank & Trust Co of Chicago v Papanicolaou (The "Fedora", The "Tatiana" and The "Eretrea II") [1986] 2 Lloyd's Rep 441 Daewoo Australia Pty Ltd v Porter Crane Imports Pty Ltd t/as Betta Machinery Sales [2000] QSC 50 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500; [1986] HCA 82 In the matter of Octaviar Administration Pty Ltd (In Liquidation) [2020] NSWSC 927 Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161; [1972] HCA 74 Kennards Hire Pty Ltd v RMGA Pty Ltd [2010] NSWSC 1387 McVeigh v National Australia Bank (2000) 278 ALR 249; [2000] FCA 187 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Norman v FEA Plantations Ltd (2011) 195 FCR 97; [2011] FCAFC 99 O'Brien v Bank of Western Australia Ltd (2013) 16 BPR 31,705; [2013] NSWCA 71 Oswal v Commonwealth Bank of Australia Ltd [2013] WASCA 58 Perpetual Trustees Victoria Ltd v English (2010) 14 BPR 27,339; [2010] NSWCA 32 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Texts Cited: --- Category: Procedural and other rulings Parties: Nick Combis and Steven Staatz as joint and several liquidators of RB Hospitality Holdings Pty Ltd (In Liquidation) (Plaintiffs) Richard Andrew John Lee (Defendant) Representation: Counsel: Mr DK Smith (Plaintiffs) Mr M Bennett (Defendant)