In the matter of Beechworth Land Estates Pty Ltd (Admin Apt) and Griffith Estates Pty Ltd (Admin Apt) (No 3) [2015] NSWSC 733

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Beechworth Land Estates Pty Ltd (Admin Apt) and Griffith Estates Pty Ltd (Admin Apt) (No 3) [2015] NSWSC 733 Hearing dates: 2 April 2015 Date of orders: 12 June 2015 Decision date: 12 June 2015 Jurisdiction: Equity Division - Corporations List Before: Robb J Decision: The parties will be given 3 days to comment on the appropriateness of the form of the orders proposed in par 152 of these reasons for judgment Catchwords: PROCEDURE – applications for summary dismissal and strike out by defendants – whether the first plaintiff was a creditor for the purposes of the Corporations Act 2001 (Cth) at the time of filing of the claim - first plaintiff was not a creditor at that time – first plaintiff acquired debt for a collateral purpose – first plaintiff's claim dismissed in relation to Beechworth

PROCEDURE – costs – security for costs – whether the sixth plaintiff should provide security to defendants for costs of defending proceedings concerning Beechworth – sixth plaintiff failed to produce evidence of its financial capacity or respond to a notice to produce – held there is reason to believe it may be unable to pay costs if ordered – order for security for costs

PROCEDURE – substitution of plaintiff parties to prosecute derivative claims on behalf of company – company in administration – s 237 Corporations Act 2001 (Cth) not relevant – application in the discretion of the Court – Court must be confident that the plaintiff is acting in the overall interests of company in administration – Court will not order substitution of parties – leave given to sixth plaintiff to renew its application with further evidence Legislation Cited: Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Corporations Act 2001 (Cth) Duties Act 1997 (NSW) Supreme Court (Corporations) Rules 1999 (Cth) Cases Cited: Australian Beverage Distributors v the Redrock Co [2008] NSWSC 3 Bleyer v Google Inc [2014] NSWSC 897; (2014) 311 ALR 529 Carpenter v Pioneer Park Pty Ltd [2008] NSWSC 551; (2008) 71 NSWLR 577 DSG Holdings Australia Pty Ltd v Helenic Pty Ltd [2014] NSWCA 96; (2014) 307 ALR 143 FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd [2000] WASCA 69; (2000) 33 ACSR 739 Grizonic v Suttor [2008] NSWSC 914 Helenic Pty Ltd (as trustee of Mastrantonis Family Trust) v Retail Adventures Pty Ltd (admins apptd) [2013] NSWSC Hoath v Comcen Pty Ltd [2005] NSWSC 477; (2005) 53 ACSR 708 In the matter of Beechworth Land Estates Pty Ltd (Admin apt) and Griffith Estates Pty Ltd (Admin apt) [2014] NSWSC 1723 International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3; (2008) 234 CLR 151 IPEX ITG Pty Ltd (admin apptd) (recs and mgrs. apptd) v Melbourne Water Corporation (No 4) [2008] VSC 497 Mediterranean Olives Financial Pty Ltd v Loaders Traders Pty Ltd (subject to doca) (No 2) [2011] FCA 178; (2011) 82 ACSR 300 Perak Pioneer Ltd v Petroliam Nasional Bhd [1986] AC 849 Photios v Cussen and Senatore (in their capacity as joint administrators of Beechworth Land Estates Pty Ltd (administrators appointed)) [2015] NSWSC 336 QBI Corporation Pty Ltd v Plantation Rise Pty Ltd (admins apptd) (recs and mgrs. apptd) [2010] QSC 102; (2010) 77 ACSR 573 Re Colorado Products Pty Ltd (in prov liq) [2013] NSWSC 611 Street v Lunar Park Sydney Pty Ltd [2006] NSWSC 1317 Treadwell v Hickey [2009] NSWSC 1395 Westbourne Grammar School v Sanget Pty Ltd [2007] VSCA 309 Category: Procedural and other rulings Parties: James Photios (first plaintiff) Perri Investments No 3 Pty Ltd (second plaintiff) Redhill Estate Developments Pty Ltd (fifth plaintiff) First Debenture Limited (sixth plaintiff) Neil Robert Cussen and Ezio Marco Sentore in their capacity as joint administrators of Beechworth Land Estates Pty Ltd (administrators appointed) (first defendants) Beechworth Land Estates Pty Ltd (administrators appointed) (second defendant) Neil Robert Cussen and Ezio Marco Sentore in their capacity as joint administrators of Griffith Land Estates Pty Ltd (administrators appointed) (third defendants) Griffith Land Estates Pty Ltd (administrators appointed) (fourth defendant) Vangory Holdings Pty Ltd (fifth defendant) Vangory Services Pty Ltd (sixth defendant) Representation: Counsel: R Glasson (plaintiffs) M Condon SC (first – fourth defendants) T Orlitzki (fifth – sixth defendants)