In the matter of Australian Property Custodian Holdings Limited (in liquidation) (receivers and managers appointed) (as responsible entity of the Prime Retirement Aged Care Property Trust) [2012] NSWSC 679

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Australian Property Custodian Holdings Limited (in liquidation) (receivers and managers appointed) (as responsible entity of the Prime Retirement Aged Care Property Trust) [2012] NSWSC 679 Hearing dates: 22 May 2012 Decision date: 21 June 2012 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Statement of Claim struck out. Leave granted to file Amended Statement of Claim. Proceedings dismissed as against Second Defendant. Plaintiff to pay costs of and incidental to the motions heard. Parties to bring in agreed short minutes to give effect to judgment or competing drafts and short submissions. Catchwords: PRACTICE AND PROCEDURE - Strike out applications - Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28 - Power of court to dismiss proceedings or claims and when such power may be exercised. CONTRACTS - Privity - Qualification to privity rule that a party to a contract may hold, on trust for a third party, the benefit of a contractual promise to confer a benefit on that third party - Whether evidence suggests case based trust of promise has prospects of success. Legislation Cited: - Civil Procedure Act 2005 (NSW) ss 56(1), 58(1), 58(2) - Retirement Villages Act 1999 (NSW) - Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28 Cases Cited: - Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 - Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334 - Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 - Birmingham v Renfrew (1937) 57 CLR 666 - Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 - Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 - Ciavarella v Polimeni [2008] NSWSC 234 - Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 - Cypjayne Pty Ltd v Rodskog [2009] NSWSC 301 - Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 - General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 - Layne Christensen Co v Stanley [2005] WASC 169 - Mizzi v Reliance Financial Services Pty Ltd [2007] NSWSC 37 - Papas v Jabba Constructions Pty Ltd [2010] NSWSC 361 - Shaw v New South Wales [2012] NSWCA 102 - Shalhoub Holdings Pty Ltd v Commonwealth Bank of Australia [2006] NSWSC 607 - Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 - Stanley v Layne Christensen Co [2006] WASCA 56 - Tasker v Small (1837) 3 My & Cr 63; 40 ER 848 - Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107 - Tweed Shire Council v Minister Administering Crown Lands Act [1996] NSWSC 423; (1996) 92 LGERA 80 - Wilson v Darling Island Stevedoring and Lighterage Co Ltd (1956) 95 CLR 43 - Winterton Constructions Pty Ltd v Hambros Australia Ltd (1991) 101 ALR 363 Category: Principal judgment Parties: Brentwood Village Limited (Plaintiff) Australian Property Custodian Holdings Limited (in liquidation) (receivers and managers appointed) (First Defendant) Industry Funds Management (Nominees 2) Pty Limited (Second Defendant) Prime Retirement Aged Care Property Trust (Third Defendant) Brentwood Village Management Pty Limited (Fourth Defendant) Representation: Counsel: J.T. Johnson (Plaintiff) No appearance (First Defendant) T.M. Thawley (Second Defendant) No appearance (Third Defendant) J.C. Hewitt (Fourth Defendant) Solicitors: DC Balog & Associates (Plaintiff) No appearance (First Defendant) Arnold Bloch Leibler (Second Defendant) No appearance (Third Defendant) Clifford Chance (Fourth Defendant) File Number(s): 11/271554