In the matter of Sirrah Pty Limited (In Liquidation) [2021] NSWSC 1274

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Sirrah Pty Limited (In Liquidation) [2021] NSWSC 1274 Hearing dates: 01 October 2021 Date of orders: 08 October 2021 Decision date: 08 October 2021 Jurisdiction: Equity - Corporations List Before: Williams J Decision: See orders at [85]. Catchwords: CORPORATIONS — plaintiff's application for appointment of receiver to the assets of the third and fourth defendants — where plaintiff is unsecured judgment creditor of the third and fourth defendants as a result of judgment given in earlier proceedings under the Corporations Act 2001 (Cth) — where solicitor acting for those parties in the earlier proceedings appointed a receiver to their assets pursuant to a charging clause in the solicitor's costs agreement — whether appointment and actions of that receiver are in breach of an undertaking to the Court given by the third defendant in the earlier proceedings — where plaintiff complains that receiver has failed to follow "due process" in marketing the assets for sale — application for Court to appoint receiver (replacing the receiver appointed by the solicitor) under s 1323(1)(h) of the Corporations Act 2001 (Cth), s 67 of the Supreme Court Act 1970 (NSW) or in the exercise of the inherent jurisdiction to appoint a receiver in aid of equitable execution — application dismissed Legislation Cited: Civil Procedure Act 2005 (NSW), Part 8 Companies (SA) Code 1982, s 573 Conveyancing Act 1919 (NSW), s 109 Corporations Act 2001 (Cth), s 1323 Supreme Court Act 1970 (NSW), s 67 Uniform Civil Procedure Rules 2005 (NSW), r 25.14 Cases Cited: Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) (No. 2) (2015) 106 ACSR 302; [2015] FCA 527 Australian Securities and Investments Commission v Carey (No.3) (2006) 57 ACSR 307; [2006] FCA 433 Australian Securities and Investments Commission v Carey (No.5) (2006) 58 ACSR 6; [2006] FCA 684 Australian Securities and Investments Commission v Oliver Banovec (No. 2) [2007] NSWSC 961 Corporation Affairs Commission v Lone Star Exploration NL (1988) 50 SASR 24 Hall v Foster [2012] NSWSC 974 HDI Global Specialty SE v Wonkana No. 3 Pty Ltd [2020] NSWCA 296 In the matter of Sirrah Pty Ltd (in prov liq) [2021] NSWSC 413 In the matter of Sirrah Pty Ltd (in prov liq) [2021] NSWSC 492 King Investment Solutions Pty Ltd v Hussain [2005] NSWSC 1076 Mathieson Nominees Pty Ltd v Aero Developments Pty Ltd [2016] VSC 131 Roberts v Investwell [2012] NSWCA 134 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd [2019] NSWCA 11 Texts Cited: E Sykes and S Walker, Law of Securities (5th ed, 1993), Fisher & Lightwood's Law of Mortgage (3rd Australian edition, 2013) G E Dal Pont, Equity and Trusts in Australia (7th ed, 2019) Category: Principal judgment Parties: Sirrah Pty Limited (In Liquidation) (ACN 000 417 247) (Plaintiff) Domenic Calabretta in his Capacity as the Receiver & Manager of the Assets of William Francis Harris (First Defendant) A.C.N 640 543 979 Pty Limited ATF the YBL 2020 Trust Trading as Yates Beaggi Lawyers (Second Defendant) Masud Behnia (Fifth Defendant) Representation: Counsel: Mr J S Tobin (Plaintiff) Ms S Agosta (Solicitor) (First Defendant) Mr A F Fernon SC with Mr E A Walker (Second Defendant) Mr A Cornish (Fifth Defendant)