In the matter of International Art Holdings Pty Ltd (admin apptd); International Art Holdings Pty Ltd (admin apptd) & ors v Adams & ors [2011] NSWSC 164

Supreme Court New South Wales

Medium Neutral Citation: In the matter of International Art Holdings Pty Ltd (admin apptd); International Art Holdings Pty Ltd (admin apptd) & ors v Adams & ors [2011] NSWSC 164 Hearing dates: 24 February 2011 Decision date: 07 March 2011 Before: Ward J Decision: Judicial advice given as to manner in which different categories of artworks may be dealt with by administrator and declaration as to statutory or equitable lien over artworks for administrator's remuneration costs and expenses. Catchwords: JUDICIAL ADVICE - application by administrator of company for judicial advice and directions under ss 447D and 447A of the Corporations Act 2001 (Cth) - in the alternative, application for directions under ss 63 and 81 of the Trustee Act 1925 (NSW) to the extent that administrator is a bare trustee - HELD - it was appropriate for judicial advice to be given under s 447D as to the manner in which the assets of the company should be dealt with by the administrator and the administrator's claim for remuneration - it was inappropriate for orders to be made which would determine competing parties' claim to the artworks in question - EQUITY - whether statutory lien or equitable lien to be imposed over artworks that are property of investors, not company - whether imposition of equitable lien over assets of a regulated self-managed superannuation fund will result in those assets losing their 'complying fund status' under reg 13.14 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) - whether amount of work undertaken by the administrator in the administration of the company was excessive or unnecessary - HELD - statutory lien over artworks the subject of lease to the company - equitable lien imposed to secure reimbursement of administrator's reasonable costs and expenses - reg 13.14 not applicable to an equitable lien imposed by the court - work undertaken by administrator was reasonable in the circumstances Legislation Cited: Corporations Act 2001 (Cth) Factors (Mercantile Agents) Act 1923 (NSW) Sale of Goods Act 1923 (NSW) Superannuation Industry (Supervision) Regulations 1994 (Cth) Superannuation Industry (Supervision) Act 1993 (Cth) Trustee Act 1925 (NSW) Cases Cited: Application of Crouch [2005] NSWSC 1122 ASIC v Carey (No 6) (2006) 58 ACSR 141 Bertrand v Davies (1862) 54 ER 1204 Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552 Coad v Wellness Pursuit Pty Ltd (in liq) 71 ACSR 250 Commonwealth v ABC2 Group Pty Ltd [2008] NSWSC 1383; (2008) 69 ACSR 229 Commonwealth Bank v Butterell (1994) 35 NSWLR 64 Crawford v Oswald Park Pty Ltd [2006] NSWSC 987 Crouch Re: Heritage Fine Wines [2007] NSWSC 1055; (2007) 214 FLR 244 Crouch v Lynne Adams [2006] NSWSC 1029 Davies v Littlejohn (1923) 34 CLR 174 Dean-Willcocks v Soluble Solution Hydroponics (1997) 42 NSWLR 209 Editions Tom Thomspon v Pilley (1997) 77 FCR 141 Flack v Chairman, National Crime Authority (1997) 80 FCR 137 Gatward v Alley (1940) 40 SR (NSW) 174 Grossman v E Katz Manufacturing Jewellers (2004) 213 ALR 373 Hamilton v Donovan Oates Hannaford Mortgage Corporation Ltd [2007] NSWSC 10; (2007) 61 ACSR 82 Handberg (in his capacity as liquidator of S&D International) (in liq) v MIG Property Services Pty Ltd [2010] VSC 336 Hewett v Court (1983) 46 ALR 87 Hoath v Connect Internet Services [2006] NSWSC 158 Lemery Holdings v Reliance Financial Services Pty Ltd (2008) 74 NSWLR 550 Lockwood v White (2005) 11 VR 402 Macedonian Orthodox Community Church v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 Matter of Tharp (1852) 65 ER 533 Moodemere Pty Ltd (in liq) v Waters [1988] VR 215 Onefone Australia Pty Ltd v One Tel Ltd [2010] NSWSC 1120 Perpetual Trustees & National Executors of Tasmania Ltd v Perkins (1989) Aust Torts Reports 80-295 Re Ansett Australia (2001) 39 ACSR 355 Re Application of Sutherland [2004] NSWSC 798 Re Berkeley Applegate (Investment Consultants) Ltd (in liq); Harris v Conway [1988] 3 All ER 71 Re Central Commodities Services Pty Ltd [1984] 1 NSWLR 25 Re G B Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 Re Kirkegaard [1950] St R Qd 144 Re Petersen [1920] St R Qd 42 Re Universal Distributing Co Ltd (in liq) (1933) 48 CLR 171 Shiraz Nominees (in liq) v Collinson (1985) 10 ACLR 7 Shirlaw v Taylor (1991) 31 FCR 222 Specialised Transport v Domimak (1989) 16 NSWLR 657 Standard Electronic Apparatus Laboratories Ply Ltd v Stenner [1960] NSWR 447; (1960) 77 WN (NSW) 833 Stephenson Nominees Pty Ltd v Official Receiver (1987) 16 FCR 536 Weston v Carling Constructions Pty Ltd (2000) 35 ACSR 100 Texts Cited: Austin & Black's Annotations to the Corporations Act Jacobs' Law of Trusts in Australia (7th edn) McClintock, Handbook of the Principles of Equity (2nd edn) Palmer, Bailment (2nd edn) Stuart Jones' Australian Superannuation Handbook, 2010-11 The Law of Superannuation in Australia Category: Principal judgment Parties: International Art Holdings Pty Ltd (admin apptd) (First Plaintiff) GD Rentals Pty Ltd (admin apptd) (Second Plaintiff) Hunter Capital Pty Ltd (admin apptd) (Third Plaintiff) Hunter Holdings (Australia) Pty Ltd (admin apptd) (Fourth Plaintiff) Sule Arnautovic in his capacity as administrator of the First to Fourth Plaintiffs (Fifth Plaintiff) Lynne & Mark Adams and the other persons described in Schedule 1 to the Plaintiffs' Further Amended Originating Process (Defendants) Representation: DR Stack (Plaintiffs) G O'Mahoney (Miss D Williams) ERA Legal (Plaintiffs) LE Drolz (as trustee of the Drolz Superannuation Fund)(30th Defendant) (self represented) E Uri (116th Defendant) (self represented) File Number(s): 10/417616 Publication restriction: No