Pitt-Owen v Lenin [2006] NSWSC 748

Reported Decision : (2006) 24 ACLC 964

New South Wales Supreme Court

CITATION : Pitt-Owen v Lenin [2006] NSWSC 748 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 21/06/06 Written submissions - 05/07/06, 06/07/06

JUDGMENT DATE : 28 July 2006

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Barrett J

DECISION : Leave to proceed to be granted

CATCHWORDS : CORPORATIONS - winding up - whether leave to proceed against company should be granted - proceedings upon company's causes of action against its landlord - such causes of action assigned - where landlord claims unpaid rent against company - whether claim for rent alone can be proved - nature of subject matter of assignment of causes of action having regard to set-off at commencement of winding up

LEGISLATION CITED : Corporations Act 2001 (Cth), ss.500(2), 553C, Part 5.3A,

Barton v Atlantic 3 Financial (Australia) Pty Ltd (2004) 212 ALR 348 CASES CITED : Gye v McIntyre (1991) 171 CLR 609 Ogilvie-Grant v East (1983) 7 ACLR 669 Stein v Blake [1996] AC 243

PARTIES : David Albert Pitt-Owen - Plaintiff Michael Lenin - Defendant

FILE NUMBER(S) : SC 2304/06

COUNSEL : Ms N.C. Bearup - Plaintiff Mr M.A. Ashhurst - Defendant

SOLICITORS : Levitt Robinson - Plaintiff Hicksons - Defendant

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

BARRETT J

FRIDAY, 28 JULY 2006

2304/06 DAVID ALBERT PITT-OWEN v MICHAEL LENIN JUDGMENT 1 I have before me an application for leave under s.500(2) of the Corporations Act 2001 (Cth) to proceed by way of cross-claim against a company which is subject to creditors voluntary winding up as a consequence of voluntary administration under Part 5.3A of that Act. The company is Sydney Accommodation Group Pty Limited ("SAG"). 2 An associated company, Diamondgaze Pty Limited, is involved in the proceedings and is also in the course of being wound up. However, the application for leave to proceed is made in respect of SAG only. 3 That application is made by Mr Lenin, the sole defendant in the proceedings. The sole plaintiff is Mr Pitt-Owen. He, as the alleged assignee of causes of action said to have accrued to SAG, sues Mr Lenin in relation to certain representations said to have been made by Mr Lenin to SAG at the time SAG took a lease of certain premises at Kirribilli from Mr Lenin. Mr Pitt-Owen, as assignee, also sues Mr Lenin for alleged breaches of the covenant for quiet enjoyment contained in the lease. 4 Mr Lenin, by way of defence to the claims advanced by Mr Pitt-Owen, denies the validity of that the alleged assignment by SAG to Mr Pitt-Owen, denies the making of the alleged representations and denies breach of the covenant for quiet enjoyment.