One T Development Pty Ltd v Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd [2023] NSWCA 120

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: One T Development Pty Ltd v Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd [2023] NSWCA 120 Hearing dates: 20 April 2023 Decision date: 02 June 2023 Before: Ward P; Leeming JA; Mitchelmore JA Decision: 1. Appeal dismissed, with costs, and (subject to the determination of any application of the kind provided for by order 4 below), costs after the hearing of the appeal are to be on the indemnity basis. 2. For the avoidance of doubt, the notice of motion filed 22 October 2022 is dismissed. 3. For the avoidance of doubt, the application for further orders attached to the email from Mr Mohamad El-Masri to the Court dated 12 May 2023 is dismissed. 4. If any application is to be made by the appellant for a different costs order than that suggested in the reasons for judgment, that application is to be made within the time specified by UCPR r 36.16, and accompanied by submissions not exceeding two pages to be supplied by email to the Associate to the President, with submissions in response not exceeding two pages to be supplied within 7 days thereafter, and any submissions in reply not exceeding two pages within a further 7 days, with the application then to be determined on the papers. Catchwords: CORPORATIONS LAW – liquidator – orders pursuant to s 90-15 of Sch 2 to the Corporations Act 2001 (Cth) – whether liquidator justified in proceeding on basis that company assets were not held on trust – scope and nature of power – whether errors in evaluation of evidence – appeal dismissed Legislation Cited: Corporations Act 2001 (Cth), s 479(3) (now repealed), Sch 2, s 90-15 Supreme Court Act 1970 (NSW), s 75A(8) Uniform Civil Procedure Rules 2005 (NSW), r 36.16 Vexatious Proceedings Act 2008 (NSW) Cases Cited: Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270; [2000] HCA 30 Bastion v Gideon Investments [2000] NSWSC 939; 35 ACSR 466 Glenfyne International Holding Ltd v Glenfyne Farms International AU Pty Ltd (in liq) (2019) 101 NSWLR 358; [2019] NSWCA 304 House v The King (1936) 55 CLR 499; [1936] HCA 40 In re MF Global Australia Ltd (in liq) [2012] NSWSC 994; 267 FLR 27 In the matter of ENA Development Pty Ltd (in liq) [2022] NSWSC 919 In the matter of ENA Development Pty Ltd (in liq) (ACN 105 235 363) [2023] NSWSC 503 In the matter of ENA Developments Pty Ltd (in liq) [2022] NSWSC 1478 In the matter of Glengrant Civil Pty Ltd (in liq) [2017] NSWSC 843 In the matter of Hawden Property Group Pty Ltd (in liq) [2018] NSWSC 481; 125 ACSR 355 In the matter of Montpac Pty Ltd (in liq) and Global Network Link Pty Ltd (in liq) [2020] NSWSC 1237; 149 ACSR 138 Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd (2008) 74 NSWLR 550; [2008] NSWSC 1344 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54 Primary Securities Ltd v Willmott Forests Ltd (mgrs and recs apptd) (in liq) (2016) 50 VR 752; [2016] VSCA 309 Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 Category: Principal judgment Parties: One T Development Pty Ltd (Appellant) Peter Krejci in his capacity liquidator of ENA Development Pty Ltd (First Respondent) ENA Development Pty Ltd (in liq) (Second Respondent) Andy Pham (Third Respondent) Thi Pham (Fourth Respondent) Representation: Counsel: A Rogers with P Lin (Appellant) J Giles SC with M Rose (First and Second Respondents)