George Georges v Gregg Thomson [2008] NSWSC 248

New South Wales Supreme Court

CITATION : George Georges v Gregg Thomson [2008] NSWSC 248 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 6 March 2008 JUDGMENT OF : Hammerschlag J

EX TEMPORE JUDGMENT DATE : 6 March 2008

DECISION : Direction that liquidators justifed in selling co-licensed land and orders appointing trustees for sale of co-owned land.

CATCHWORDS : CORPORATIONS - Company under winding up co-owns certain land and licences certain other land to growers - Directions pursuant to s 479(3) of the Corporations Act 2001 (Cth) that liquidator justified in selling licensed land and orders pursuant to s 66G of the Conveyancing Act 1919 for trustee sale of co-owned land

LEGISLATION CITED : Corporations Act 2001 (Cth) Conveyancing Act 1919 (NSW)

Ngatoa v Ford (1990) 19 NSWLR 72 CASES CITED : Williams v Legg (1993) 29 NSWLR 687 Hogan v Baseden (1997) 8 BPR 15,723 Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674

George Georges and Peter Damien McCluskey in their capacities as liquidators of Radiata Plantations Ltd (ACN 085 235 347) (in liquidation) PARTIES : Radiata Plantations Ltd (ACN 085 235 347) (in liquidation) Gregg Thomson

FILE NUMBER(S) : SC 5323/2007

COUNSEL : P. Kulevski (Plaintiffs)

SOLICITORS : Blake Dawson Waldron (Plaintiffs)

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

HAMMERSCHLAG J

6 MARCH 2008

5323/2007 GEORGE GEORGES and PETER DAMIEN MCCLUSKEY in their capacities as liquidators of RADIATA PLANTATIONS LTD (ACN 085 235 347) (IN LIQUIDATION) –V- GREGG THOMSON JUDGMENT 1 HIS HONOUR: The second plaintiff company ("the Company") was placed in liquidation on 2 February 2006 and the first plaintiffs, Messrs Georges and McClusky were appointed liquidators ("the liquidators"). The Company was incorporated to acquire land to be utilised as pine tree plantations. 2 In 2004 it bought land known as the Harrington Plantations from the Harrington Group Limited. The land is at Hai Welyki, Lithgow, Tumut Heights, Rockley, Vista, Burraga and Lawson ("the plantations") all within the state of New South Wales. It acquired the plantations subject either to the co-ownership interest or licence interest of numerous individuals (sometimes referred to as "growers"). 3 Hai Welyki, Lithgow and Tumut Heights are co-owned by numerous persons who have small shares as tenants in common with the Company. The Company's interest is significantly greater than any other individual. The individuals have interests of between 0.2 and 3%, whereas the Company has 33% of Hai Welyki, 27% of Lithgow, and 85% of Tumut Heights. The remaining plantations, that is Rockley, Vista, Burraga and Lawson are not co-owned. Rather, the Company has licence agreements with 129 licensees. For an annual licence fee the Company granted to each a licence to enter specified land to: "Plant, tend, grow, care for, cultivate, fell, harvest and sell" trees on the land for 25 years with a 5 year option to renew. 4 There were originally 171 such licensees. Now there are 129. 5 These proceedings concern the manner in which the liquidators propose to deal with the plantations having regard to the co-ownership interests in some and the license interests in the others. 6 By originating process dated 29 October 2007, they seek: