New South Wales Supreme Court CITATION : Director General Department of Fair Trading v Woolcott Village Pty Ltd [2001] NSWSC 889 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4894/01 HEARING DATE(S) : 5 October 2001 JUDGMENT DATE : 5 October 2001 PARTIES : Director General of the Department of Fair Trading (P) Woolcott Village Pty Ltd (D) JUDGMENT OF : Hamilton J COUNSEL : P Bambagiotti (P) No appearance (D) SOLICITORS : D I Catt (P) No appearance (D) CATCHWORDS : CORPORATIONS [188] - Receivers, managers and controllers - Appointment - By Court - Retirement Villages Act 1999 - Appointment of administrator - Whether application may be ex parte or should be on notice - Whether undertaking as to damages required on application by Director General of Fair Trading. LEGISLATION CITED : Retirement Villages Act 1999 s 84(1), (2), s 196 CASES CITED : ACCC v Giraffe World Australia Pty Limited (1998) 84 FCR 512 National Australia Bank Limited v Bond Brewing Holdings Limited (1990) 169 CLR 271 DECISION : Administrator appointed for short finite period although no appearance by company after short notice; undertaking as to damages not required from Director General. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J FRIDAY, 5 OCTOBER 2001 4894/01 DIRECTOR GENERAL DEPARTMENT OF FAIR TRADING v WOOLCOTT VILLAGE PTY LIMITED Judgment 1 HIS HONOUR: This is an application under s 84(1) of the Retirement Villages Act 1999 ("the RVA") for the appointment of an administrator of the Woolcott Court Retirement Village. Section 84(2) of the RVA provides as follows: "The Director General may apply for an order under the section only if the Director General is of the opinion that the well-being or financial security of the residents of the retirement village concerned is at risk." I have before me the affidavit of the Director General, David O'Connor, indicating the material to which the Director General has adverted and expressing the opinion required by s 84(2) as a prerequisite for this application. The body of evidence considered by the Director General has also been laid before the Court. I do not need to go into detail. That body of evidence shows a village in a parlous state, with staff unpaid over periods of weeks, premises, it would seem, uninsured and other obligations outstanding. Two matters of particular alarm and of particular threat to the village are that there has not even, over a period now starting to run into weeks, been sufficient food for the residents to eat, so that they have been obliged to create "kitties" of their own in which they pool sums of money to assist in providing food for themselves. The parlous state is heightened by the fact that there is before this Court on Monday morning an originating process for the winding up of the defendant. This village is apparently conducted, at least in part, by the premises occupied by the residents, being rented in by the defendant. The winding up proceedings are brought against the defendant by the owners of one of the rented in units for unpaid rent. 2 I was first approached in this matter about noon today on an ex parte basis. When I say the approach was on an ex parte basis, it should be borne in mind that considerable approaches to and discussions with officers of the defendant have already been undertaken by officers of the Director General. Furthermore, Mr Jamie Coss, the solicitor in the plaintiff's office who has conduct of this matter, had already conveyed information to a director or directors of the defendant that the Court was to be approached today on an ex parte basis and inviting the defendant to attend if it were so minded. Whilst the statutory administrator under the RVA is not a conventional receiver appointed either under an instrument or by the Court, nonetheless the appointment of such an administrator may, in my view - and Mr Bambagiotti, of counsel for the Director General, does not gainsay this - be financially disastrous to a village. In those circumstances, I was reluctant to appoint an administrator in a formally ex parte application: see National Australia Bank Limited v Bond Brewing Holdings Limited (1990) 169 CLR 271. On the other hand, because of the seriousness of the situation of a village with long term unpaid employees, not enough money to buy food and a winding up application pending on Monday morning, I thought it important to appoint an administrator immediately to attend to the exigencies of the residents and also to have some time to survey the situation and participate in any way the administrator deems appropriate in the winding up proceedings on Monday morning. I therefore gave leave to serve very short notice of the summons by making it returnable before me at 3pm today. 3 Mr Coss immediately motored to the village in Wahroonga and served a female person over 16 years of age at the registered office of the defendant, which is at the village, with the summons and notice of motion. Perhaps unfortunately, he did not deliver copies of the affidavits, although I should say that he was not specifically directed to do so by the Court. When the matter came on again before me at about 3.30 this afternoon, Mr Watson, of Watson & Mangioni, solicitors of this city, appeared with limited and rather strange instructions. They were that Mr Dalrymple had telephoned him and informed him that he was a director of the defendant and asked Mr Watson to attend at the Court to draw attention to the lack of affidavits and to suggest that the matter should be stood over at least to Monday to give further opportunity to the defendant to attend before an order for the appointment of an administrator was made. Mr Watson took these to be instructions on behalf of the defendant company rather than of Mr Dalrymple personally, and that appears to me to be correct. However, Mr Watson made it quite plain that that was the limit of his instructions. He had no retainer to participate in the matter and did not even have instructions which would authorise him to receive service on the defendant's behalf of further documents. Bearing in mind the circumstances of these limited and rather strange instructions, I informed Mr Watson that, having carried them out, I did not require him to file an appearance on the defendant's behalf. 4 It is perhaps significant that Mr Dalrymple received the documents shortly after they were served by Mr Coss at 2.01pm, although he was said not to be present at the premises for Mr Coss to serve the documents on him. He was able immediately to contact a solicitor and give some limited instructions to that solicitor. Particularly bearing in mind the earlier communications made by Mr Coss, to which I have earlier referred, I regard it as significant that the defendant, if it desired to resist the immediate appointment of an administrator, was not able to send representatives of the company to the city by car to be in court or to instruct solicitor or counsel to be in court to require the affidavits to be given to them here and to attempt, despite the fact that time was short, to participate in the proceedings on its behalf. 5 I have already indicated that the case made out by the Director General as to the parlous state of this village, the lack of immediate necessities by way of food for these residents, and the impending liquidation proceedings returnable on Monday, make some sort of proper attention to its affairs a pressing necessity. As I say, I have evidence that the Director General has formed the statutory opinion referred to in s 84(2) and, again as I have already stated, there is a strong body of evidence both to justify the Director General's opinion and to persuade the Court that immediate action is called for in the circumstances. Mr Bambagiotti has, I think wisely, asked that the appointment, however, should be made as an interlocutory appointment only today, that is, an appointment until further order, bearing in mind that some of the evidence relied on is hearsay and bearing in mind the shortness of opportunity given to the defendant to present an opposing case. To meet these exigencies I shall make the appointment until further order. I shall also, as has been suggested on behalf of the Director General reserve to any party, as well as to the administrator, liberty to apply on 12 hours' notice. 6 I inquired of Mr Bambagiotti whether an undertaking as to damages was proffered on the Director General's behalf. He said that it was his submission on behalf of the Director General that an undertaking as to damages ought not be required. He put three matters in support of this. One was the fact that the Director General was, in making this application, carrying out a public duty. Another was the provisions of s 196 of the RVA. A third, perhaps related to the first, was the difference between this case and a case such as the ACCC v Giraffe World Australia Pty Limited (1998) 84 FCR 512, where the ACCC was required to give an undertaking as to damages, but in a case in which it was in effect seeking as a representative party to enforce private rights rather than simply carrying out a public duty (per Lindgren J at 539). It is now late Friday afternoon and the rights and wrongs of that matter cannot conveniently be investigated at the moment. What I do in that regard is make it plain that, among the matters in respect of which the defendant may apply under the liberty to apply reserved, is whether the Director General should be required to give the usual undertaking as to damages. If such an application is made - which, I gather, is of some novelty – this question may be investigated at more leisure. The Director General has very properly, through his counsel, indicated to the Court that, if the Court thought it appropriate that he should be required to give an undertaking as to damages, he would then be prepared to give that undertaking nunc pro tunc so that it would be retrospective to the original appointment of the administrator. 7 Mr Michael Gregory Jones of Parramatta, chartered accountant and registered liquidator, is proposed by the Director General as the administrator and has filed an affidavit consenting to appointment, and I propose to appointment Mr Jones accordingly. There will therefore be orders in accordance with the short minutes initialled by me and placed with the papers. ******************************** Last Modified: 10/29/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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