David Lewis Clout in his capacity as Liquidator of Mainz Developments Pty Ltd (in liquidation) [2016] NSWSC 1146

Supreme Court New South Wales

Medium Neutral Citation: David Lewis Clout in his capacity as Liquidator of Mainz Developments Pty Ltd (in liquidation) [2016] NSWSC 1146 Hearing dates: 8 June 2016 Decision date: 19 August 2016 Jurisdiction: Equity Before: Robb J Decision: See par 176 Catchwords: CORPORATIONS – liquidator's lien over property of company – priority over charges over property of company for remuneration and expenses of care, preservation and realisation of property – caveats lodged after date of contract for sale for liquidator to sell property – caveats based on charges allegedly granted by company before commencement of winding up – validity of charges questionable – consideration of work reasonably required of liquidator in the care, preservation and realisation of the property in the context of securing the withdrawal of the caveats to permit completion of the contact for sale – liquidator's claim for amount of remuneration and expenses supported by lien in priority to charges excessive – no order made at this stage on liquidator's claim for payment to him of balance of proceeds of sale of property paid into court after completion of contract for sale.

CORPORATIONS – determination of liquidator's entitlement to remunerations and expenses for the care, preservation and realisation of the company's property – remuneration and expenses to be determined separately – consideration of relevance of reasonable remuneration as a proportion of amount realised by liquidator – consideration of proper basis for claim for remuneration by liquidator. Legislation Cited: Corporations Act 2001 (Cth) Real Property Act 1900 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Burns Philp Investment Pty Ltd v Dickens (No 2) (1993) 31 NSWLR 280 Conlan (as liquidator of Rowena Nominees Pty Ltd) v Adams [2008] WASCA 61; (2008) 65 ACSR 521 In the matter of Independent Contractor Services (Aust) Pty Ltd ACN 119 186 971 (in liquidation) (No 2) [2016] NSWSC 106 Re AAA Financial Intelligence Ltd (in liq) (No 2) [2014] NSWSC 1270 Re Hellion Protection Pty Ltd (in liq) [2014] NSWSC 1299 Re Anderson Group Pty Ltd; Mann v Anderson [2002] NSWSC 764 Re Fine Food Distributors Pty Ltd; Ex parte Whitehouse [1992] 9 ACSR 599 Re Gramarkers Pty Ltd (No 2) [2014] NSWSC 1405 Re Kal Assay Southern Cross Pty Ltd (in liq) (1992) 9 ACSR 245 Re Sakr Nominees Pty Ltd [2016] NSWSC 709 Re Standard Insurance Co Ltd (in liq) [1967] VR 600 Re Stockford Ltd; Korda and Another [2004] FCA 1682; (2004) 52 ACSR 279 Re Queensland Forests Ltd (in liq) [1966] Qd R 180 Re Universal Distributing Co Ltd (in liq) [1933] HCA 2; (1933) 48 CLR 171 Stewart v Atco Controls Pty Ltd (in liq) [2014] HCA 15; (2014) 252 CLR 307 Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96 Category: Procedural and other rulings Parties: David Lewis Clout in his capacity as Liquidator of Mainz Developments Pty Ltd (In Liquidation) (first plaintiff) Mainz Developments Pty Ltd (In Liquidation) (second plaintiff) Stoddart (SE Queesland) Pty Ltd (first defendant) Adbri Masonry Pty Ltd (second defendant) Bunnings Group Limited (third defendant) National Masonry Pty Ltd (fourth defendant) Representation: Counsel: M Zaki (plaintiffs) R L Gall (defendants)