Aquamore Fund 2 Pty Ltd v Church Point Apartments Pty Ltd (receivers and managers appointed) [2023] NSWSC 511

Supreme Court New South Wales

Medium Neutral Citation: Aquamore Fund 2 Pty Ltd v Church Point Apartments Pty Ltd (receivers and managers appointed) [2023] NSWSC 511 Hearing dates: 8 and 11 May 2023 Date of orders: 16 May 2023 Decision date: 16 May 2023 Jurisdiction: Equity - Commercial List Before: Rees J Decision: Recusal application dismissed; judgment for plaintiff. Catchwords: BANKING AND FINANCE — lender advances $3.25m secured by mortgage and guarantees – default – lender appoints receiver – property sold – borrower and guarantors sued for balance – lender entitled to amount sought. COURTS AND JUDGES — apprehended bias — application made after judgment reserved — guarantor referred to in judgment given by judge four years' earlier in unrelated proceedings – waiver of right to seek recusal — principles at [41]-[43] —guarantor's solicitor aware of earlier judgment – issue of recusal already raised in proceedings – solicitor aware that judge allocated to hear the matter two weeks before hearing – solicitor's knowledge imputed to client — solicitor also a cross-defendant – whether knowledge imputed to solicitor as a party can be imputed to his client – actual knowledge required – principles at [49] – right waived by arguing the merits. APPREHENDED BIAS — principles at [55]-[60] — guarantor not a party to earlier proceedings — no findings against guarantor in previous judgment — guarantor not giving evidence in these proceedings — no related issues — recusal application rejected. CIVIL PROCEDURE — service — pleadings served on borrower by providing to receiver and manager — receiver's power to 'defend proceedings in relation to secured property' does not extend to accepting service — service on receiver is not effective service on corporation — principles at [75]-[77] — whether waiver of irregularity of service – principles at [80]-[81] — guarantors' solicitor twice appears for borrower at directions hearing — no appearance for borrower at trial — borrower files recusal motion after trial — no waiver. Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56 ,57, 58 62, 66 Corporations Act 2001 (Cth) s 109X Uniform Civil Procedure Rules 2005 (NSW) r 7.30, 10.14, 10.22, 29.5 Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 Boyle v Sacker (1888) 39 Ch D 249 British American Tobacco Australia Ltd v Peter Gordon & Anor [2007] NSWSC 109 Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 540 Carver v de Robillard [2006] FCA 1041 Chamoun v District Court of New South Wales [2018] NSWCA 187 Cohen v McWilliam (1995) 38 NSWLR 478; (1995) 128 FLR 263 Deckers Outdoor Corporation Inc v Farley [2010] FCA 391 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Ford Excavations Pty Ltd v Do Carmo [1981] 2 NSWLR 253 Goodman Fielder Consumer Foods Pty Ltd v Graincorp Foods Australia Pty Ltd [2020] NSWSC 706 Hamod v New South Wales [2011] NSWCA 375 Huynh v Attorney General (NSW) (2021) 107 NSWLR 75; [2021] NSWCA 297 Johnson v Alexander [2002] NSWSC 824 Kerr v American Express Australia Ltd [2009] FCA 1219 Laming v Jennings [2018] VSCA 335 Lennox v Amcor Ltd trading as Amcor Cartonboard (No 2) [2009] FCA 962 Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 Mandie v Memart Nominees Pty Ltd (No 3) [2016] VSC 267 Menzies v Paccar Financial Pty Ltd (No 4) (2014) 101 ACSR 25; [2014] NSWCA 210 Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427 NT Power Generation Pty ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48 Pacific General Securities Ltd v Soliman & Sons Pty Ltd [2006] NSWSC 13 Porter v Australian Prudential Regulation Authority (2010) 184 FCR 382 QGC Pty Limited v Bygrave (2010) 186 FCR 376; [2010] FCA 659 R v El-Zeyat [2012] NSWSC 340 Re Lifestyle Residences Hobsons Bay Pty Ltd (recs & mgrs apptd) [2023] VSC 179) Re Refugee Tribunal ex parte H [2001] HCA 28; (2001) 75 ALJR 982 Roladuct Spiral Tubing Pty Ltd v C & P Trading Pty Ltd (1993) 114 FLR 392 Sargeant v ASL Developments Ltd [1974] HCA 40; (1974) 131 CLR 634 Singh v Deputy Commissioner of Taxation [2011] FCA 889 Smits v Roach [2006] HCA 36; (2006) CLR 423 Sunshine Retail Investments Pty v Wulff [1999] VSC 415 The Hills Shire Council v Mouawad (2014) 203 LGERA 233; [2014] NSWLEC 59 Thornberry v The Queen (1995) 69 ALJR 777 Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 Texts Cited: Dal Pont, Law of Agency, 4th ed (2020) Category: Principal judgment Parties: Aquamore Fund 2 Pty Ltd (Plaintiff) Church Point Apartments Pty Ltd (receivers and managers appointed) (First Defendant) Gregory Walker (Second Defendant) Forest Apartments Pty Ltd (Fourth Defendant) The Gosford Pty Ltd (Fifth Defendant) Representation: Counsel: Mr R Alkadamani (Plaintiff)