Lunn v Savage [2006] NSWSC 240

New South Wales Supreme Court

CITATION : Lunn v Savage [2006] NSWSC 240

HEARING DATE(S) : 4 April 2006

JUDGMENT DATE : 4 April 2006

JURISDICTION : Equity

JUDGMENT OF : Campbell J

EX TEMPORE JUDGMENT DATE : 04/04/2006

DECISION : Discharge granted.

CATCHWORDS : RECEIVERS - court-appointed receiver - receiver applying for his own discharge

LEGISLATION CITED : Corporations Law

Braham v Lord Strathmore (1844) 8 Jur 567 CASES CITED : Hoskins v Campbell (1869) WN 59 Lunn v Cardiff Coal Company (No.3) (2003) 177 FLR 411; (2003) 47 ACSR 79; [2003] NSWSC 789 Tewart v Lawson (1874) LR 18 Eq 490

PARTIES : Alan Edward Lewis (as Receiver of Cardiff Coal Company) - Applicant

FILE NUMBER(S) : SC 3047/89

COUNSEL : G Fernie, solicitor (as agent for the Applicant)

SOLICITORS : Hewitts Commercial Lawyers - Applicant

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

CAMPBELL J

TUESDAY 4 APRIL 2006

3047/89 EDWARD LUNN & ORS v LESLIE SAVAGE & ORS JUDGMENT – Ex Tempore 1 HIS HONOUR: This is an application by a court appointed receiver for his own discharge from office. The receiver was appointed in the course of a dispute, one element of which was whether the plaintiff had been wrongly excluded from membership of the Cardiff Coal Company. That company had been dormant for many years, but it had some assets. 2 On 6 September 1996 Hulme J appointed the applicant as receiver of the company, with limited powers. They were to enter into possession and take control of the property of the company for the purpose of preparing a report concerning certain topics. The receiver was given quite limited powers, namely those arising under section 420(2)(a), (p) and (q) and sections 430 and 431 of the Corporations Law, together with an express grant of power to do: "… all things necessary or convenient to be done for or in connection with or as incidental to the exercise of powers under those provisions and to the preparation and furnishing of the report the subject of order 2." 3 The applicant provided two reports, both described as interim reports, to the Court. The second of those was provided on 12 September 1997. There does not appear to have been any final report. 4 On 29 August 2003 Barrett J decided that a liquidator should be appointed to the company: Lunn v Cardiff Coal Company (No 3) (2003) 177 FLR 411; (2003) 47 ACSR 79; [2003] NSWSC 789. 5 On 7 October 2003, an order giving effect to that decision was made, whereby Mr Brian Silvia was appointed as liquidator. 6 On 19 October 2004 the receiver closed his bank account. He has had no functions to perform since then. 7 The liquidation itself now appears to be either complete or very close to complete. In April 2005 the only asset held by the liquidator was $400,000 of cash at bank, plus some other unidentified assets valued at $17,000 odd. There were no realisable assets, and no outstanding creditors. Relevantly for present purposes, the liquidator did not foreshadow any possibility of investigating, or bringing, any claim against the receiver. 8 A court-appointed receiver can be discharged when the object of his appointment has been fully effected: Tewart v Lawson (1874) LR 18 Eq 490 at 496; Hoskins v Campbell [1869] WN 59; Braham v Lord Strathmore (1844) 8 Jur 567. That is the situation here. It is therefore appropriate to make the order discharging the receiver. 9 I make order 1 in the Notice of Motion filed 19 December 2005. **********