In the matter of Bevillesta Pty Limited [2011] NSWSC 1378

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Bevillesta Pty Limited [2011] NSWSC 1378 Hearing dates: 14 November 2011 Decision date: 16 November 2011 Jurisdiction: Equity Division - Corporations List Before: Barrett J Decision: 1. Order that the interlocutory process of Top Ryde Funding Pty Ltd filed on 14 October 2011 be dismissed. 2. Grant leave to Dana Terese Rahme to file a notice of motion seeking leave to amend in conformity with the reasons published by me on 16 November 2011. 3. Direct that any such notice of motion be filed and served not later than 23 November 2011 and be returnable before me at 9.30am on 30 November 2011. 4. Direct that the question of costs in relation to the interlocutory process of Top Ryde Funding Pty Ltd be listed before me for oral argument not exceeding fifteen minutes at 9.30am on 30 November 2011. Catchwords: PROCEDURE - form of initiating process - "creditors' trust" created by deed of company arrangement - trust deed creates procedure for proof of debts to establish status as beneficiary - various provisions of corporations legislation "incorporated into" trust deed by reference - person dissatisfied with rejection of proof by trustees files interlocutory process in proceeding in which voluntary administrators obtained directions as to establishment of creditors trust - "funder" of trust maintains that the person's application is a nullity because (a) filed in completed or spent proceeding (b) embodied in interlocutory process that can only be used to make an application under Corporations Act and (c) a trust instrument cannot confer jurisdiction on the court - "funder's" objections well taken but do not lead to finding of nullity - the situation is one of irregularity under Civil Procedure Act s 63 amenable to amendment under s 64. Legislation Cited: Civil Procedure Act 2005, ss 58, 63, 64. Corporations Act 2001 (Cth), Part 5.3A, s 439A, s 1321. Corporations Regulations 2001 (Cth), reg 5.6.54(2). Supreme Court (Corporations) Rules 1999, rule 2.2, Form2, Form 3. Uniform Civil Procedure Rules 2005, rules 6.2, 6.3, 6.4, 13.4, 14.28. Cases Cited: Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734. Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729. Raworth v Parker (1855) 2 K&J 163; 69 ER 736. Re Bevillesta Pty Ltd [2011] NSWSC 417; (2011) 84 ACSR 215. Wain v The Earl of Egmont (1834) 3 My & K 445; 40 ER 170. Whitmore v Turquand (1860) 1 J & H 444; 70 ER 821; affirmed (1861) De G F &J 107; 45 ER 819. Category: Interlocutory applications Parties: Martin John Green and Peter Paul Krejci as Voluntary Administrators of Bevillesta Pty Limited - Plaintiffs Top Ryde Funding Pty Limited - Applicant Dana Terese Rahme - Respondent Representation: Mr F Kunc SC - Applicant Mr G D McDonald - Respondent Middletons - Applicant Solon Lawyers - Respondent File Number(s): 2011/00099655