International Skin Care Suppliers Pty Ltd v Whyte [2011] NSWSC 463

Supreme Court New South Wales

Medium Neutral Citation: International Skin Care Suppliers Pty Ltd v Whyte [2011] NSWSC 463 Hearing dates: 8, 11 April, 13 May 2011 and written submissions Decision date: 24 May 2011 Jurisdiction: Equity Division - Corporations List Before: Barrett J Decision: 1. Declare that the plaintiffs are entitled to possession of the property located at 12-14 Macintosh Street, Mascot in the State of New South Wales pursuant to the terms of the Commercial Lease Agreements dated 1 May 2009 and 10 December 2009. 2. Declare that the second defendant (Industry Only Pty Ltd) holds all of the assets, undertaking, fittings, fixtures, plant and equipment, intellectual property, goodwill and stock in trade relating to or used in connection with the skin care product wholesaling business known as "Indio" on trust for International Skin Care Suppliers Pty Limited (receivers and managers appointed) ('Indio'). 3. Order pursuant to section 37A of the Conveyancing Act 1919 that every transfer or disposition of the assets, undertaking, fittings, fixtures, plant and equipment, intellectual property, goodwill and stock in trade relating to or used in connection with the skin care product wholesaling business known as "Indio" to the second defendant (industry Only Pty Ltd) is void and of no effect. 4. Order that the second defendant (Industry Only Pty Ltd) do all things as may be necessary to restore and re-vest in Indio all of the assets, undertakings, fittings, fixtures, plant and equipment, intellectual property, goodwill and stock in trade relating to or used in connection with the skin care product wholesaling business known as "Indio". 5. Order the second defendant, its agents and employees, be restrained from hindering or interfering with the exercise of the plaintiffs or their employees or agents from entering, remaining or taking possession of 12-14 Macintosh Street, Mascot New South Wales. 6. Order that the defendants pay the plaintiffs' costs of the proceedings. Catchwords: BANKRUPTCY AND INSOLVENCY - avoidance of alienation of property with intent to defraud creditors - "phoenix company" - company in financial difficulties vacates the field in favour of another company owned by associate of its owners Legislation Cited: Bankruptcy Act 1966 (Cth), s 121 Conveyancing Act 1919, s 37A 1571 (13 Eliz 1, c5) Corporations Act 2011 (Cth), Part 5.3A Cases Cited: Caddy v McInnes (1995) 131 ALR 277 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Freeman v Pope (1870) 5 Ch App 538 Lloyds Bank Ltd v Marcan [1973] 1 WLR 1387 Marcolongo v Chen [2011] HCA 3; (2011) 85 ALJR 380 Official Trustee in Bankruptcy v Baker (unreported, FCA, 5 August 1994) Re Trautwein; Richardson v Trautwein (1944) 14 ABC 61 Category: Principal judgment Parties: Paul Andrew Billingham and Gayle Louise Dickerson as Joint Receivers of International Skin Care Suppliers Pty Ltd - First and Second Plaintiffs Eileen Ann Whyte - First Defendant Industry Only Pty Limited - Second Defendant Representation: Counsel: Mr B A J Coles QC/Mr J E Hynes - Plaintiff Mr B Levet - Second Defendant Solicitors: Henry Davis York - Plaintiffs File Number(s): 2011/19538