Albarran v Thin Seam Mining Pty Ltd [2005] NSWSC 372

New South Wales Supreme Court

CITATION : Albarran v Thin Seam Mining Pty Ltd [2005] NSWSC 372

HEARING DATE(S) : 21/07/04, 22/07/04, 23/07/04, 20/10/04, 08/02/05, 09/02/05, 10/02/05 Written submissions: 17/02/05

JUDGMENT DATE : 26 April 2005

Equity Division JURISDICTION : Corporations List

JUDGMENT OF : Barrett J

DECISION : Further amended originating process dismissed with costs

CATCHWORDS : CONTRACTS - formation - whether oral contract formed - ESTOPPEL - whether oral representation made - turns on own facts - no question of principle

CASES CITED : Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153

Richard Albarran and Geoffrey David McDonald - Plaintiffs Thin Seam Mining Pty Limited - First Defendant Bellpac Pty Limited - Second Defendant David Watson and Scot Turner - Third Defendant JAM 2002 Pty Limited - Fourth Defendant PARTIES : Island Fork Construiction Limited - Fifth Defendant Greenfuels Holding Company LLC - Sixth Defendant Sandwork Pty Ltd - Seventh Defendant Rag Trading Asia Pacific Pte Limited - Eighth Defendant Great Pacific Capital Limited - Ninth Defendant

FILE NUMBER(S) : SC 4469/03

Mr M.R. Aldridge SC - Plaintiffs COUNSEL : Mr F.G. Lever SC - Defendants

Nash O'Neill Tomko Lawyers - Plaintiffs SOLICITORS : Piper Alderman - Defendants

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

BARRETT J

TUESDAY, 26 APRIL 2005

4469/03 – RICHARD ALBARRAN & ANOR v THIN SEAM MINING PTY LIMITED & 8 ORS JUDGMENT 1 On 30 April 2003, the plaintiffs, Mr Albarran and Mr McDonald, were appointed administrators of the first defendant, Thin Seam Mining Limited ("TSM"), under Part 5.3A of the Corporations Act 2001 (Cth). TSM operated a coal mine on the southern coalfields of New South Wales. The mine was owned by GPC Bellambi Pty Ltd, an associated company of the ninth defendant, Great Pacific Capital Ltd ("GPC"). The appointment of administrators was in consequence of a resolution of directors under s.436A. TSM eventually executed a deed of company arrangement providing returns to creditors of the order of 20 cents in the dollar. In the meantime, the events giving rise to these proceedings occurred. 2 By their further amended originating process, the plaintiffs seek declaratory relief against GPC as follows: "A declaration that the Ninth Defendant indemnify the Plaintiffs for their remuneration up to $90,000 plus GST, disbursements and liabilities as Voluntary Administrator of the First Defendant, to the extent that such remuneration, disbursements and liabilities are not met from their entitlements as statutory or equitable lienees over the assets of the First Defendant."