In the matter of Anglican Development Fund Diocese of Bathurst (receivers & managers appointed) [2015] NSWSC 440

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Anglican Development Fund Diocese of Bathurst (receivers & managers appointed) [2015] NSWSC 440 Hearing dates: 30 March 2015 Date of orders: 20 April 2015 Decision date: 20 April 2015 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Receivers advised that (1) they should deal with APT's proof by setting off the amount due from APT to ADF against the amount owed to APT by ADF, and admitting only the balance; and (2) they would not be justified in deferring adjudication of the APT proof pending determination of related proceedings. Catchwords: EQUITY - equitable remedies – receivers – receivers appointed by court – applications – for the opinion advice and direction of the court – nature and extent of jurisdiction CORPORATIONS – bodies corporate other than companies and associations – winding up – insolvency – proofs of debt – set-off - whether statutory set-off under Corporations Act, s 553C, is available – held, it is not – whether rule in Cherry v Boultbee applies – where set-off of mutual debts available – held, rule does not apply, mutual debts to be set-off EQUITY – equitable remedies - receivers – receivers appointed by court – where appointed to wind up a corporation not subject to winding up under Corporations Act – where authorised to receive and adjudicate proofs of debt – whether justified in deferring adjudication pending outcome of related proceedings – where not apparent that circumstances of debt will be illuminated by evidence or findings in the related proceedings – held, not justified in deferring adjudication Legislation Cited: (CTH) Corporations Act 2001, s 553C (CTH) Bankruptcy Act 1966, s 86 (CTH) Corporations Regulations 2001, reg 5.6.53 (NSW) Anglican Church Bodies Corporate Act 1938 (NSW) Anglican Church of Australia Trust Property Act 1917, s 5, s 19 (NSW) Trustee Act 1923, s 63 (NSW) Civil Procedure Act 2005, s 21(1), s 90(2)(a) Cases Cited: Australian Mutual Provident Society v Specialist Funding Consultants Pty Ltd (1991) 24 NSWLR 326 Australian Securities and Investments Commission v Commercial Nominees of Australia Ltd (2002) 42 ACSR 240 AWA Ltd v Exicom Australia Pty Ltd (1990) 19 NSWLR 705 Bank of NSW v Commissioner of Taxation (1979) 145 CLR 438 Cherry v Boultbee (1839) 41 ER 171 Courtenay v Williams (1844) 67 ER 494 Coventry v Charter Pacific Corp Ltd (2005) 227 CLR 234 Day & Dent Constructions Pty Ltd v North Australian Properties Pty Ltd (1982) 150 CLR 85 Ex parte James (1874) LR 9 Ch App 609 Ex parte Pelly (1882) 21 Ch D 492 Ex parte Theys (1884) 25 Ch D 587 Fused Electrics Pty Ltd (in liq) v Donald [1995] 2 Qd R 7 Glazier Holdings Pty Ltd v Australian Men's Health Pty Ltd (Young J, 30 April 1998, unreported) Gye v Davies (1995) 37 NSWLR 421 Gye v McIntyre (1991) 171 CLR 609 Hiley v The Peoples Prudential Assurance Company Ltd (1938) 60 CLR 468 In re King (1914) 31 WN (NSW) 55 In the matter of Anglican Development Fund Diocese of Bathurst Board (recs and mgrs apptd) [2015] NSWSC 6 James v Commonwealth Bank [1992] FCA 420; (1992) 37 FCR 445 Jeffs v Wood (1723) 24 ER 668 Mariconte v Batiste (2000) 48 NSWLR 724 Otis Elevator Co Pty Ltd v Guide Rails Pty Ltd (in liquidation) [2004] NSWSC 383; (2004) 49 ACSR 531 Rawson v Samuel (1841) 41 ER 451 Re Akerman [1891] 3 Ch 212 Re Kaupthing Singer and Friedlander Ltd [2011] UKSC 48 Re Leeds & Hanley Theatres of Varieties Limited [1904] 2 Ch 45 Re Peruvian Railway Construction Company Ltd [1915] 2 Ch 144 Turner v Turner [1911] 1 Ch 716 Category: Principal judgment Parties: Barry Frederic Kogan and Joseph David Hayes in their capacity as receivers and managers of the Anglican Development Fund Diocese of Bathurst (receivers and managers appointed) (applicants) Anglican Property Trust Diocese of Bathurst (respondent) Representation: Counsel: P. Dowdy (applicants) D.R. Stack (respondent)