In the matter of Anglican Development Fund Diocese of Bathurst Board (recs and mgrs apptd) [2015] NSWSC 6

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Anglican Development Fund Diocese of Bathurst Board (recs and mgrs apptd) [2015] NSWSC 6 Hearing dates: 26 and 28 November 2014 Decision date: 22 January 2015 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Parties to bring in agreed short minutes of order to give effect to this judgment and as to costs within 14 days or, if they cannot reach agreement, their respective draft short minutes of order and short submissions as to the differences between them. Catchwords: CORPORATIONS – receivers, controllers and managers – application by receivers for leave to make interim distribution to creditors – where fund and substantial creditor had entered into consent judgment against fund for judgment debt – whether receivers should investigate potential liability of creditor to fund – whether consent judgment should be set aside – residual powers of directors during receivership to consent to judgment – whether interim distribution should be deferred until determination of associated proceedings – alleged lack of impartiality of receivers and their solicitors – whether leave should otherwise be granted for interim distribution. Legislation Cited: - Australian Securities and Investments Commission Act 2001 (Cth) ss 12CA, 12CB, 12GF, 12GM - Civil Procedure Act 2001 (NSW) s 101 - Corporations Act 2001 (Cth) ss 180, 181, 182, 420(1), 420(2), 420(2)(k), 423, 536, 1317H, 1321 - Supreme Court Act 1970 (NSW) s 67 - Uniform Civil Procedure Rules 2005 (NSW) rr 36.15, 36.16, 36.17, 36.18 Cases Cited: - Australian Securities and Investments Commission v Franklin [2014] FCAFC 85; (2014) 101 ACSR 87 - Cape v Redarb Pty Ltd (1992) 8 ACSR 67 - Commonwealth Bank of Australia v Fernandez [2010] FCA 1487; (2010) 81 ACSR 262 - Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 - Hall v Poolman [2009] NSWCA 64; (2009) 75 NSWLR 99 - Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd (1969) 92 WN (NSW) 199 - Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 - Newhart Developments Ltd v Co-operative Commercial Bank Ltd [1978] 1 QB 814 - Oswal v Burrup Fertilizers [2013] FCAFC 9; (2013) 295 ALR 708 - Re B Johnson & Co (Builders) Ltd [1955] Ch 634 - Re Geneva Finance Ltd; Quigley (rec and mgr of all assets and undertakings of Geneva Finance Ltd (rec and mgr apptd) v Cook (1992) 7 WAR 496; 7 ACSR 415 - Re Lorie Najjar & Sons Pty Ltd [2013] NSWSC 798; (2013) 94 ACSR 561 - Smarter Way (Aust) Pty Ltd v D'Aloia [2000] VSC 408; (2000) 35 ACSR 595 - State Bank of New South Wales v Chia [2000] NSWSC 552; (2000) 50 NSWLR 587 Texts Cited: J O'Donovan, Company Receivers and Administrators (2nd ed looseleaf, LawBook Co) Category: Procedural and other rulings Parties: Barry Frederic Kogan and Joseph David Hayes in their capacity as receivers and managers of the Anglican Development Fund Diocese of Bathurst Board (recs and mgrs apptd) (Plaintiffs/Applicants) Anglican Development Fund Diocese of Bathurst Board (recs and mgrs apptd) (Defendant/Respondent) Representation: Counsel: A G Bell SC/E L Beechey (Plaintiffs/Applicants) D R Stack (Defendant/Respondent)