Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd (in liq); Yazbek v Gleeson as Liquidator of Atlas Construction Group Pty Ltd (in liq); Fitz Jersey Pty Ltd v Gleeson as Liquidator of Atlas Construction Group Pty Ltd (in liq) [2022] NSWSC 394

Supreme Court New South Wales

Medium Neutral Citation: Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd (in liq); Yazbek v Gleeson as Liquidator of Atlas Construction Group Pty Ltd (in liq); Fitz Jersey Pty Ltd v Gleeson as Liquidator of Atlas Construction Group Pty Ltd (in liq) [2022] NSWSC 394 Hearing dates: 25 March 2022 Date of orders: 5 April 2022 Decision date: 05 April 2022 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Final orders, other than as to costs, to be made as set out in these reasons Catchwords: CORPORATIONS – remedies – where liquidator of company assigned rights to plaintiff on basis that fruits of success ultimately be paid to liquidator after payment of plaintiff's costs – where finding earlier made that directors declared dividend in breach of s 254T of the Corporations Act 2001 (Cth) – where finding earlier made that declaration of dividend and writing off of shareholder loan voidable transactions for purposes of s 588FF of that Act – finding made of amount due by company to the plaintiff – nature of remedies that should be awarded to plaintiff – whether remedies should extend beyond requiring directors and parties into whose hands proceeds of dividends flowed to pay plaintiff the amount found to be due by the company to the plaintiff BUILDING AND CONSTRUCTION – further findings concerning matters not decided in primary judgment Legislation Cited: Conveyancing Act 1919 (NSW) Corporations Act 2001 (Cth) Insolvency Practice Schedule (Corporations) 2016 – Schedule 2 Corporations Act 2001 (Cth) Cases Cited: Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd (in liq); Yazbek v Gleeson as Liquidator of Atlas Construction Group Pty Ltd (in liq); Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd (in liq) [2021] NSWSC 1692 Oates v Consolidated Capital Services Ltd (2009) 76 NSWLR 69; [2009] NSWCA 183 Category: Consequential orders Parties: In proceedings 2017/11963: Fitz Jersey Pty Ltd (Plaintiff) Atlas Construction Group Pty Ltd (in liq) (First Defendant) Robert Yazbek (Second Defendant) Kebzay Pty Ltd (Third Defendant) Botany Road Project Pty Ltd (Fourth Defendant) Scott Sweeney (Fifth Defendant) Sweenham Pty Ltd (Sixth Defendant) Annette Yazbek (Seventh Defendant) Kebzay Custodian No. 2 Pty Ltd (Eighth Defendant) Castlefield Corner Pty Ltd (Ninth Defendant) 620 Botany Road Pty Ltd (Tenth Defendant)