New South Wales Supreme Court CITATION : Mircon Pty Limited v Ariff [2009] NSWSC 651 HEARING DATE(S) : 9 July 2009 JUDGMENT DATE : 10 July 2009 JURISDICTION : Equity JUDGMENT OF : Tamberlin AJ (1) Leave is granted for the plaintiff to commence and continue the proceedings in the Corporations List pursuant to Rule 1.8 of the Supreme Court (Corporations) Rules 1999 (NSW). DECISION : (2) That the defendant pay the plaintiff the sum of $115,236.53 pursuant to s 447A(1) of the Corporations Act 2001 (Cth) together with interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW). (3) The hearing of the cross-claim is adjourned to 27 July 2009 at 9.30 am before me and I direct that not later than 22 July notice of the adjournment be served on Mr Ariff by fax advising him that the cross-claim may be dismissed if there is no attendance by him or on his behalf at that time. I also direct that a copy of these orders be sent to the last know address of the three cross-defendants. (4) The defendant pay the plaintiff's costs including reserved costs. CATCHWORDS : ADMINISTRATOR - Voluntary administration - Whether voluntary administrator incurred debts for services rendered within s 443A of the Corporations Act 2001 (Cth) - Whether court should make an order pursuant to s 447A(1) - Whether administrator's cross-claim should be adjourned pursuant to Rule 13.6 of the Uniform Civil Procedure Rules 2005 (NSW) Civil Liability Act 2002 (NSW) LEGISLATION CITED : Corporations Act 2001 (Cth) Supreme Court (Corporations) Rules 1999 (NSW) Uniform Civil Procedure Rules 2005 (NSW) CATEGORY : Procedural and other rulings Mircon Pty Limited (Plaintiff) Stuart Karim Ariff ( Defendant/Cross-claimant) PARTIES : State Securities Pty Limited (First Cross-defendant) Bulla Tip & Quarry Operations Pty Ltd (in Liq) (Second Cross-defendant) Bulla Tip & Quarry Pty Ltd (in Liq) (Third Cross-defendant) FILE NUMBER(S) : SC 5513/2008 COUNSEL : G George (Plaintiff) Reimer Winter Williamson (Plaintiff) SOLICITORS : N/A (Defendant/Cross Claimant) N/A (First, Second & Third Cross Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST ACTING JUSTICE TAMBERLIN FRIDAY, 10 JULY 2009 5513/2008 MIRCON PTY LTD v STUART KARIM ARIFF JUDGMENT 1 HIS HONOUR: Before me is a claim under s 443A of the Corporations Act 2001 (Cth) (the Act) brought by Mircon Pty Limited (Mircon) against Mr Ariff who, at the relevant time, was Administrator of Bulla Tip & Quarry Pty Limited (Bulla Tip) and Bulla Tip & Quarry Operations Pty Ltd (Bulla Operations). He was appointed on 13 December 2006 pursuant to s 436C of the Act and continued as Administrator under a deed of company administration of 4 April 2007 until he was replaced on 13 December 2007. Both those companies are in liquidation. 2 The claim is for $115,236.53 and is in respect of services rendered in the form of consulting and administration services and for hiring of equipment in relation to the operation of a quarry at Bulla in Victoria in the period February/March 2007. 3 When the matter came on for hearing there was no appearance for the defendant Mr Ariff or any of the three cross-defendants: State Securities Pty Limited (State Securities), Bulla Tip or Bulla Operations. Mr George of counsel appeared for the plaintiff. 4 The matter has been the subject of numerous directions hearings the latest being that before Austin J on 27 April 2009 when his Honour fixed the hearing date for 9 July 2009 after noting that the plaintiff and the defendant had filed their evidence. At that directions hearing there was an appearance on behalf of Mr Ariff by Ms Keverian, a solicitor. His Honour directed that the cross-defendant, State Securities, should file any evidence by 8 May 2009. It has filed no evidence. 5 Evidence filed by Mr Ariff is directed to the three cross-claims for indemnity against State Securities, Bulla Operations and Bulla Tip. 6 On 13 May 2009 the solicitor for Mr Ariff gave him Notice of Intention to cease to act for him and filed in Court a Notice of Ceasing to Act in the court on 13 May 2009. 7 On Wednesday 8 July 2009 at 9.27 am there was sent to Mr Ariff a fax confirming the hearing on 9 July 2009. Mr Ariff sent an email to the Court on July 9 stating that he did not propose to attend because he was not notified until the morning of 9 July and was not prepared and he said he wanted an adjournment. 8 The application for adjournment was opposed by the plaintiff. 9 This is not a matter in which there should be an adjournment because I am not satisfied that any substantial reason has been given by Mr Ariff in view of the notification of the date of hearing to the solicitor appearing on 27 April 2009 of the hearing and the fact that his solicitor did not cease to act until sometime thereafter. In addition, Mr Ariff has not sought to put on any evidence to challenge the amount or nature of the plaintiff's claim and has only put on documentation directed to his cross-claim. 10 I have considered the uncontradicted evidence of Mr Pamplin in his affidavit of 31 October 2008 filed on behalf of the plaintiff and in the absence of any evidence to the contrary I am satisfied that the services were performed and the equipment was hired on the material before me and Mr Ariff is liable to pay the sum of $115,236.53 to the plaintiff. 11 In relation to the cross-claim there has been no appearance by either the cross-claimant or any of the three cross-defendants. 12 In view of the fact that the Bulla companies are in liquidation and the fact that there is no evidence to indicate that any leave or permission has been granted to institute the proceedings or to take any step in the proceedings, the cross-claim against those parties appears to be presently stayed. 13 In relation to the cross-claims by Mr Ariff against the three cross-defendants, in the absence of any appearance by Mr Ariff or any of the cross-defendants and in the absence of any application to dismiss the cross-claim the preferable course is to adjourn the hearing of the cross-claim to 27 July 2009 at 9.30 am before me. In accordance with Rule 13.6(1) of the Uniform Civil Procedure Rules 2005 (NSW) I direct that not later than 22 July 2009 notice of the adjournment be served on Mr Ariff by fax advising him that the cross-claim may be dismissed if there is no attendance by him or on his behalf. 14 The orders of the Court are therefore that: (1) Leave is granted for the plaintiff to commence and continue the proceedings in the Corporations List pursuant to Rule 1.8 of the Supreme Court (Corporations) Rules 1999 (NSW). (2) That the defendant pay the plaintiff the sum of $115,236.53 pursuant to s 447A(1) of the Act together with interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW). (3) The hearing of the cross-claim is adjourned to 27 July 2009 at 9.30 am before me and I direct that not later than 22 July notice of the adjournment be served on Mr Ariff by fax advising him that the cross-claim may be dismissed if there is no attendance by him or on his behalf at that time. I also direct that a copy of these orders be sent to the last known address of the three cross-defendants. (4) The defendant pay the plaintiff's costs including reserved costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.