National Australia Bank Ltd v C & O Voukidis Pty Ltd (No. 4) [2014] NSWSC 741

Supreme Court New South Wales

Medium Neutral Citation: National Australia Bank Ltd v C & O Voukidis Pty Ltd (No. 4) [2014] NSWSC 741 Hearing dates: 2 June 2014 Decision date: 02 June 2014 Jurisdiction: Common Law Before: Campbell J Decision: The notice of motion of 20 May 2014 filed on behalf of C & O Voukidis Pty Limited is dismissed. Catchwords: PROCEDURE - civil - summary disposal - dismissal - want of prosecution - dismissal of notice of motion where party bringing the motion stayed by dint of s 471B Corporations Act 2001 Legislation Cited: Corporations Act 2001 (Cth), ss 471B and 471C Cases Cited: National Australia Bank v C & O Voukidis (No 3) [2014] NSWSC 711; National Australia Bank v C & O Voukidis [2014] NSWSC 384 Category: Interlocutory applications Parties: National Australia Bank Ltd (Plaintiff) C & O Voukidis Pty Ltd (First Defendant) Olga Voukidis (Fourth Defendant) Representation: Counsel: P Reynolds (Plaintiff) Solicitors: Gadens Lawyers (Plaintiff) File Number(s): 2012/00082867

EX TEMPORE Judgment 1On 3 April 2014, I ordered summary judgment in favour of the National Australia Bank for possession of a property known as XX XXXXXXXXX Burwood in the State of New South Wales. I also gave leave to the plaintiff to issue a writ of possession in respect of it. 2The first defendant, C & O Voukidis Pty Limited, is the registered proprietor of that property. As I explained in my judgment of 3 April ([2014] NSWSC 384 at paras [23]-[24]) the first defendant is also a defendant in proceedings in the Supreme Court of Victoria which were originally commenced in the Equity Division of this Court but cross-vested to Victoria. There are freezing orders in those proceedings which, on the face of it, catch the Burwood property. However, clause 10(d) of the freezing orders makes those orders subject to pre-existing obligations. 3As I discussed in my judgment in National Australia Bank Ltd v C & O Voukidis (No 3) [2014] NSWSC 711 at paras [3]-[4] and [8]-[10], the application listed for hearing today is an application by the company for a stay of the issued writ of possession. The application was filed on 20 May last and was urgently listed for hearing before me on 22 May. On that day the application was apparently "settled" but the settlement broke down in disagreement over the details of it. The matter came back before me last Monday, 26 May, and I fixed it for hearing today. 4Further events have overtaken the hearing of the motion. When the matter was called today, Mr Afshar of counsel, who had appeared for the company on previous occasions, informed me that he no longer had instructions because an order that the company be wound up was made by Registrar Luxton in the Federal Court of Australia on 27 May 2014. His appearance was a matter of courtesy to the Court, for which I am grateful. 5Mr Reynolds of counsel who, as before, appears for the bank, has read an affidavit of Eliza Joan Birkett, his instructing solicitor, affirmed on 2 June 2014. I interpolate that before continuing with the proceedings, I caused the company and the liquidator, Gary Stephen Fettes, to be called outside the Court three times in accordance with conventional practice. There was no appearance. 6From the affidavit of Ms Birkett, I am satisfied that by the order made by Registrar Luxton on 27 May 2014 Mr Fettes has been appointed liquidator. I am also satisfied that Ms Birkett by email on Friday gave the liquidator notice of my judgment of 3 April 2014 by providing a copy of it. She informed the liquidator that the notice of motion is listed for hearing before me today at 4 pm and that the hearing might be brought forward to 3 pm which, in fact, occurred by arrangement with counsel. 7One of the liquidator's officers responded to Ms Birkett's email at 6.10 pm on Friday advising that the "liquidator intends to seek a small adjournment" and seeking the consent of the bank to this course. 8I am informed from the bar table by Mr Reynolds that he is instructed by Ms Birkett that she spoke to one of the liquidator's associates at about 1 pm today and advised him that she had received no instructions from her client whether or not to consent to a short adjournment. Accordingly, I am satisfied that the liquidator is fully aware that the motion to stay the writ of execution is listed for hearing before me today and that the bank was not consenting to any adjournment even though Ms Birkett expressed herself in terms of neutrality from any informed person. The fact that no consent was indicated should be treated as though any adjournment application would be opposed. 9I should also record that Ms Birkett attached to her affidavit a letter from the solicitors for the plaintiff in the Victorian Supreme Court proceedings, Messrs Foster Nicholson Jones, lawyers, asserting an entitlement under the freezing order to any surplus produced by any sale of the Burwood property and asserting that such a surplus ought to be paid into an interest bearing controlled money account, as occurred in the case of a previous sale of a property I referred to as the "other Burwood property" in my principal judgment. 10From Ms Birkett's affidavit of 21 May 2014 it is not apparent to me that it is very likely that a surplus will be produced from the sale of the Burwood property if it proceeds. But that is not a matter which I need concern myself with today. 11I am aware, by force of s 471B Corporations Act 2001 (Cth), that while the company is being wound up a person cannot begin or proceed with a proceeding in a court against the company or in relation to the property of the company. Nor can any enforcement process in relation to such property be commenced or proceeded with except with the leave of the Court. 12However, s 471C provides that s 471B does not affect a secured creditor's right to realise or otherwise deal with the security interest. The order for possession made by me and the writ for possession that has been issued by this Court to the Sheriff of New South Wales, it seems to me, fall into the exception created by s 471C. 13Accordingly, there is nothing in the federal law to preclude me from treating these current proceedings as having been stayed by force of s 471B. Nor is there anything in the federal law that stops me making any order at all today in relation to the notice of motion filed on 20 May 2014, taking into account the winding up order, the notice that was given to the liquidator by Ms Birkett and the failure of the liquidator to appear. 14I think the appropriate order for me to make is one dismissing the notice of motion. Because of the liquidator's interest and given the assertions made on behalf of the plaintiff in the Victorian proceedings, I also think it appropriate to direct that the bank to notify those persons of the orders I make today. 15My orders are: (1)The notice of motion of 20 May 2014 filed on behalf of C & O Voukidis Pty Limited is dismissed. (2)I direct the plaintiff, the National Australia Bank Limited, by its solicitors, to advise the liquidator, Mr Gary Stephen Fettes and the solicitors for the plaintiff in the Victorian proceedings, Messrs Foster Nicholson Jones, of the orders I have pronounced today.