Mamone & 1 Ors v Pantzer [2001] NSWSC 26

(2001) 36 ACSR 743 Reported Decision : [2001] NSWSC 26 [2001] ACL Rep 120 NSW 14

New South Wales Supreme Court

CITATION : Mamone & 1 Ors v Pantzer [2001] NSWSC 26 revised - 6/02/2001 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4352/00 HEARING DATE(S) : 29 January 2001 JUDGMENT DATE : 29 January 2001

PARTIES : Ascenzino Mamone and Vita Mamone (Plaintiffs) Warren Pantzer (Defendant) JUDGMENT OF : Santow J

COUNSEL : B Pluznyk (Plaintiffs) G Lucarelli (Defendant) SOLICITORS : Albert A Macri Partners (Plaintiffs) Cutler Hughes & Harris (Defendant) CATCHWORDS : CORPORATIONS — Court's power to give leave nunc pro tunc to action against liquidator under a compulsory liquidation after liquidation tasks completed — Weak case — Degree of stringency of test to be applied affected by public purpose underlying need for leave and its application to the circumstances in which leave sought. Re Magic Aust. Pty Ltd (in liq) (1992) 10 ACLC 929 CASES CITED : Re Siromath Pty Ltd (No.3) (1991) 25 NSWLR 25 Sydlow Pty Ltd (in liq) v T G Kotselas Pty Ltd & Ors (1996) 65 FCR 234; 144 ALR 159 DECISION : Plaintiffs' application for leave to bring relevant actions against Liquidator unsuccessful.

Mamone.29Jan01 — 6 February, 2001: Mamone & Anor v Pantzer REVISED — 6 February, 2001 IN THE SUPREME COURT OF NEW SOUTH WALES IN EQUITY

SANTOW J

No. 4352/00 ASCENZINO MAMONE & VITA MAMONE Plaintiffs

WARREN PANTZER Defendant

JUDGMENT — ex tempore 29 January 2001

INTRODUCTION 1 The Plaintiffs apply for leave to bring an action against the Liquidator personally. The Liquidator is Mr Warren Pantzer, of a company Starway Electric Pty Limited ("the Company"). The application is belated. The liquidation has for some time been completed, there being only some $200 in the Liquidator's bank account. Thus an application is now made, when the Liquidator no longer has the means of indemnity. 2 The action for which leave is sought essentially turns upon whether the Liquidator, as an officer of the Court charged with the compulsory liquidation, is in breach of some duty owed to the lessor under a lease to the Company. I deal only with the causes of action now pressed so far as the present leave application is concerned. That application drops any reference to a claim based on the abandonment of fixtures. The contention of the Plaintiffs is essentially this. That when the Liquidator caused the Company to cease to pay rent and to abandon the lease, this was without a formal disclaimer, but in circumstances where the keys to the leased premises were not handed to the lessor. Therefore, it is said, the Liquidator thereby breached some duty to the lessor in repudiating the lease by abandoning possession and ceasing to pay rent. That proposition is eked out by the contention that the Liquidator owed the Plaintiffs a "duty of care". It is then said that by abandoning the lease the Liquidator "broke that duty of care" (see paras 5, 8, 9 and particularly 12 of the District Court process brought by the Plaintiffs on 5 April 2000 (WP Ex 1. Doc 17)). 3 Before turning to the matters bearing upon whether leave should be granted by reference to the applicable principles I set out what can be taken to be an Agreed Statement of Facts.