Chief Commissioner of State Revenue v Reliance Financial Services Pty Ltd [2006] NSWSC 1017

New South Wales Supreme Court

CITATION : Chief Commissioner of State Revenue v Reliance Financial Services Pty Ltd [2006] NSWSC 1017

HEARING DATE(S) : 15/09/06

JUDGMENT DATE : 29 September 2006

JURISDICTION : Equity Division Corporations

JUDGMENT OF : White J

DECISION : The applicants' interlocutory process filed on 31 March 2006 is dismissed with costs.

CATCHWORDS : CORPORATIONS – Winding-up – Applications for winding-up – Substitution of applicants – Defendant company appointed applicants as receivers and managers of assets of third company – Defendant agreed to indemnify applicants for moneys payable to them as remuneration to extent such remuneration not recovered from assets of third company – Applicants claim status as creditors of defendant – Applicants seek order substituting them as applicants for winding-up of defendant – Where applicants have not recovered any remuneration from third company – Whether applicants are creditors of defendant – Held that defendant in breach of obligation to indemnify applicants – Held that defendant's liability is in unliquidated damages, not debt – Applicants contingent creditors only – Contingent creditors not entitled to order for substitution without leave of Court – Where no leave sought – Application dismissed.

LEGISLATION CITED : Corporations Act 2001 (Cth)

Tokich Holdings Pty Ltd v Sheridan Constructions (NSW) Pty Ltd (in liq) (2004) 185 FLR 180; 22 ACLC 955 Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133 Reliance Financial Services Pty Ltd v Lemery Holdings Pty Ltd [2005] NSWSC 651 Rankin v Palmer (1912) 16 CLR 285 Wren v Mahony (1972) 126 CLR 212 Alexander v Ajax Insurance Co Ltd [1956] VLR 436 Box Valley Pty Ltd v Kidd (2006) 24 ACLC 471 CASES CITED : First Line Distribution Pty Ltd v Paul Whiley & Ors (1995) 18 ACSR 185; (1995) 13 ACLC 1216 Reinsurance Australia Corp Ltd v Odyssey Re (Bermuda) Ltd (2000) 36 ACSR 348; (2001) 19 ACLC 401 Jabbour v Custodian of Absentee's Property of State of Israel [1954] 1 All ER 145 Council of the City of Penrith v Government Insurance Office of NSW (1991) 24 NSWLR 564 Community Development Pty Ltd v Engwirda Construction Co (1969) 120 CLR 455 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Mason & Carter, Restitution Law in Australia, 1995 ed Australian Securities and Investments Commission v Edwards (2005) 220 ALR 148; 57 ACSR 147