Thai v Du [2002] NSWSC 867

New South Wales Supreme Court

CITATION : Thai v Du [2002] NSWSC 867 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 5189/00 HEARING DATE(S) : 16 September 2002 JUDGMENT DATE : 16 September 2002

Trong Tan Thai (P) PARTIES : Hung Manh Du (D1) Hollywood Link Communication Pty Limited (D2) JUDGMENT OF : Hamilton J

No appearance (P) COUNSEL : H Ekes, Solicitor (D1 & 2) R I Bellamy (Receiver) Kemp Strang (P) SOLICITORS : Pembroke Solicitors (D1 & 2) Kemp Strang (Receiver) CATCHWORDS : CORPORATIONS [196] - Receivers, managers and controllers - Other matters - Application by receiver for directions - Receiver and manager appointed by Court - Whether Court should give approval to settlement of contract. CASES CITED : Glazier Holdings Pty Ltd v Australian Mens Health Pty Ltd [1998] NSWSC 144 Mariconti v Batiste [2000] NSWSC 288 DECISION : Settlement of contract by receiver approved.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

MONDAY, 16 SEPTEMBER 2002

5189/00 TRONG TAN THAI v HUNG MANH DU & ANOR JUDGMENT 1 HIS HONOUR: The Court is asked by Nicholas Craig Malanos, the receiver and manager of a partnership formerly conducted between the plaintiff and the first defendant, to approve the completion of the sale of the business known as Hollywood Communications on the terms contained in a sale agreement which is Exhibit NCM7 before me. The business is a business of selling mobile telephones and accessories from premises at Marrickville and Cabramatta. The partnership operated the stores as exclusive dealer for Cellular One Communications Pty Ltd ("Cellular One"). Under the agreement with Cellular One, which is in evidence before me, it was provided that the dealer might transfer the dealership rights if it obtained Cellular One's prior consent "which consent must not be unreasonably withheld." 2 The receiver and manager was appointed by the Court on 25 September 2001 and his powers were defined by further order of the Court made on 24 October 2001. Those powers included both a power to convert property of the partnership into money and power to sell each and every business of the partnership in such manner as the receiver and manager determines. The receiver and manager, the evidence shows, carried out a process to identify possible purchasers. A number of potential purchasers were identified and five expressions of interest received. These were submitted by the receiver and manager to Cellular One, which indicated only one of the five prospective purchasers as a person in respect of whom it was prepared to give its approval to the transfer of the dealership rights. It is with that proposed purchaser that an agreement has been entered into and that agreement has been made subject to the approval of the Court. 3 At one stage the plaintiff opposed the proposed sale but he has lost interest in doing so and, despite being informed that this motion is before the Court and will proceed in his absence if he does not appear, he has not appeared. Indeed, a letter from his solicitor has indicated no opposition, provided no order as to costs is made. However, he has been further warned that it is proposed to ask for an order for costs of the motion out of the partnership assets and he still does not appear. The first and second defendants have appeared by Mr Ekes, solicitor, and indicated that they neither consent to nor oppose the application. 4 The power of the Court to grant approval to transactions of receivers appointed by the Court has been recently discussed in at least two unreported decisions of Judges of this Division: Glazier Holdings Pty Ltd v Australian Mens Health Pty Ltd [1998] NSWSC 144; Mariconti v Batiste [2000] NSWSC 288. In the first of those decisions Young J, as his Honour then was, said: "The receiver seeks directions of the court as an officer of the court. However, his status as an officer of the court is not quite the same as other officers. I said in Moclair v Moclair , 18 December 1986, unreported, following Re St George (1887) 19 LR Ir 566, that receivers are officers of the court and they should resort to the court for guidance when they think it is desirable to do so.