Seniors Provident Pty Limited v Allco Finance Group Limited [2008] NSWSC 844

New South Wales Supreme Court

CITATION : Seniors Provident Pty Limited v Allco Finance Group Limited [2008] NSWSC 844

HEARING DATE(S) : 17 July 2008 JUDGMENT OF : McDougall J at 1

EX TEMPORE JUDGMENT DATE : 18 July 2008

DECISION : See paras [91] to [93] of the judgment.

CATCHWORDS : INJUNCTIONS – Serious question to be tried – whether valid termination of joint venture agreement – whether assets form part of business or joint venture – whether relief should be granted compelling continuance of deteriorated personal relationship – whether damages adequate remedy.

Butt v M'Donald (1896) 7 QLJ 68 CASES CITED : Mackay v Dick (1881) 6 App Cas 251 Renard Constructions (ME) Pty Limited v Minister for Public Works (1992) 26 NSWLR 234

Seniors Provident Pty Limited (ACN 097 928 286) (First Plaintiff) Phillip Crossman (Second Plaintiff) PARTIES : Allco Finance Group Limited (ACN 077 721 129) (First Defendant) Capital Markets Finance Limited (ACN 008 648 459) (Second Defendant) Allco Management Limited (ACN 003 101 731) (Third Defendant)

FILE NUMBER(S) : SC 3721/08

COUNSEL : P R Whitford SC / J A Arnott (Plaintiffs) T F Bathurst QC / M J Darke (Defendants)

SOLICITORS : DLA Phillips Fox (Plaintiffs) Allens Arthur Robinson (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

McDOUGALL J

18 July 2008 ex tempore (revised – 1 August 2008)

3721/08 SENIORS PROVIDENT PTY LIMITED v ALLCO FINANCE GROUP LIMITED JUDGMENT 1 HIS HONOUR: The first plaintiff (Seniors Provident) and the second defendant (Capital Markets) are, or were, participants in a joint venture known as the Principal Finance Joint Venture (the joint venture). The third defendant (Management) was a party to the agreement whereby the joint venture was set up. The second plaintiff (Mr Crossman), although not a party to the joint venture agreement, is or was "director" of the joint venture. Briefly described, the joint venture business comprised the earning of fee and other income through packaging and "securitisation" of various kinds of receivables. 2 On 3 July 2008, Capital Markets terminated, or purported to terminate, the joint venture and Mr Crossman's appointment as director. The plaintiffs say that the termination was ineffective. They seek, among other things, interlocutory relief preventing the defendants from selling or procuring the sale of what the plaintiffs say are the assets and business of the joint venture.