In the matter of Creditors' Trust Deed established in the administration of Bevillesta Pty Ltd [2013] NSWSC 1258

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Creditors' Trust Deed established in the administration of Bevillesta Pty Ltd [2013] NSWSC 1258 Hearing dates: 5 - 9 August 2013 Decision date: 05 September 2013 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Directions made that the trustees of the creditors' trust deed would be justified in rejecting the plaintiff's proof of debt against the creditors' trust. Orders made for parties to bring in short minutes of order to give effect to the judgment. Catchwords: CORPORATIONS - management and administration - application for review of decision of trustees of creditors' trust deed to reject a claim for payment under the terms of a creditors' trust - whether the Court has jurisdiction to determine an appeal from the decision of trustees of a creditors' trust - Court's power to give a direction to a trustee under s 63 of the Trustee Act 1925 (NSW). LANDLORD AND TENANT - agreements for lease - creation - when lease took effect at general law - where lease is a deed which would not be binding until delivered - whether intention by the lessor to be immediately bound by the lease - whether lease took effect in accordance with s 8(2) Retail Leases Act 1994 (NSW) - whether lease was sufficiently complete to have effect. DAMAGES - whether damages for breach of contract established where damages sought are loss of profit making opportunity represented by an opportunity to occupy a shop under a lease - where conflicting expert evidence - whether basis for damages calculation established. Legislation Cited: - Corporations Act 2001 (Cth) s 1321 - Corporations Regulations 2001 (Cth) reg 5.6.54(2) - Retail Leases Act 1994 (NSW) ss 3, 8, 8(1), 8(2), 11, 11(2) - Trustee Act 1925 (NSW) ss 63, 63(8)-(10) Cases Cited: - Australian Broadcasting Commission v Australasian Performing Rights Association Ltd (1973) 129 CLR 99 - Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 - Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 - Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64 - Current Images Pty Ltd v Dupack Pty Ltd [2012] NSWCA 99 - David v Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 - Foote v Acceler8 Technologies Pty Ltd [2012] NSWSC 635 - Harvey v Pratt [1956] 2 All ER 786 - Industrial Equity Ltd v Darling Point Securities Pty Ltd (1991) NSW ConvR 55-670 - Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361; (2011) 276 ALR 375 - Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 - Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 - Malec v JC Hutton [1990] HCA 20; (1990) 169 CLR 638 - Marley v Mutual Security Merchant Bank & Trust Co Ltd [1991] 3 All ER 198 - NZI Insurance Ltd v Baryzcka [2003] SASC 190; (2003) 85 SASR 497 - Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 - Picwoods Pty Ltd v Panagopoulos [2004] NSWSC 978 - Re Application by Perpetual Trust Services Ltd (as responsible entity of the Momentum AllWeather (A$) Absolute Return Fund) [2012] NSWSC 758 - Re Australian Pipeline Ltd [2006] NSWSC 1316; (2006) 60 ACSR 625 - Re Jay-O-Bees; Rosseau v Jay-O-Bees [2004] NSWSC 818; (2004) 50 ACSR 565 - Re Purchas (as liquidator of Astarra Asset Management Pty Ltd (in liq)) [2011] NSWSC 91 - Re MF Global Australia Ltd (in liq) [2012] NSWSC 994 - Segboer v AJ Richardson Properties Ltd [2012] NSWCA 253 - Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 - Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; (1990) 169 CLR 332; (1990) 1 ACSR 510 - Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 - Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 282 ALR 604 Texts Cited: - T. Heaver-Wren, "The Sharp End of Creditors' Trust Deeds - Adjudication of Claims" (2005) 23 C&SLJ 201 Category: Principal judgment Parties: Ronnat Pty Limited (Plaintiff) Peter Krejci and Martin Green as Trustees of the (Creditors Trust established by Deed in the Administration of Bevillesta) (First Defendant) Top Ryde Funding Pty Ltd (Second Defendant) Representation: Counsel: P. Bolster SC/S. Haddad (Plaintiff) T.M. Faulkner (Second Defendant) Solicitors: Spinks Eagle Lawyers (Plaintiff) K & L Gates (Second Defendant) File Number(s): 2011/310040