Active Adult Management Pty Ltd v Milstern Retirement Living Pty Ltd [2017] NSWSC 1238

Supreme Court New South Wales

Medium Neutral Citation: Active Adult Management Pty Ltd v Milstern Retirement Living Pty Ltd [2017] NSWSC 1238 Hearing dates: 8 September 2017 Date of orders: 14 September 2017 Decision date: 15 September 2017 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Order by consent that Milstern Retirement Services Pty Ltd ACN 002 053 018 be joined as the fourth defendant. 2. Order that the first, second and fourth defendants have leave pursuant to s 500(2) of the Corporations Act 2001 (Cth) to bring cross claims against the first plaintiff, being a company in liquidation, in the form of Attachment A to the notice of motion filed 10 August 2017 by the first and second defendants, other than the following parts of the Attachment A: [11]; [12], insofar as it refers to [11]; [26] insofar as it includes the words "purported"/"purportedly"; and [29]. 3. Order 2 above is on terms that the fourth defendant withdraws the proof of debt lodged by it in November 2012 in the administration (now liquidation) of the first plaintiff and that each of the first and second defendants withdraw the proof(s) of debt lodged in the name of the retirement village(s) of which it is the registered proprietor in the said administration (now liquidation) of the first plaintiff. 4. Order 2 above is further subject to the condition that the first, second and fourth defendants are prohibited from enforcing any judgment against the first plaintiff without further leave of the Court. 5. Direct that the first, second and fourth defendants file an amended cross summons in accordance with these orders by 4pm on 15 September 2017. 6. Reserve the question of costs. Catchwords: CORPORATIONS – Leave to proceed against company in liquidation pursuant to s 500(2) of the Corporations Act 2001 (Cth) Legislation Cited: Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth), ss 471B, 500 Retirement Villages Act 1999 (NSW) Powers of Attorney Act 2003 (NSW) Cases Cited: BPM Pty Ltd v HPM Pty Ltd (1996) 14 ACLC 857 Dealquip Australia Pty Ltd v 33 Electra Pty Ltd (No 2) [2013] NSWSC 1382 Distinctive FX9 Pty Ltd v Statewide Developments Pty Ltd [2012] NSWCA 393 Doran Constructions Pty Ltd (In Liq) v Beresfield Aluminium Pty Ltd (2002) 54 NSWLR 416; [2002] NSWCA 95 DSG Holdings Australia Pty Ltd v Helenic Pty Ltd [2014] NSWCA 96 Forsyth v Gibbs [2008] QCA 103 Global Partners Fund Limited v Babcock & Brown Limited (in liq) [2010] NSWCA 196 Hawes v Dean [2014] NSWCA 380 HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 479 Humber & Co v John Griffiths Cycle Company (1901) 85 LT 141 ONG v Lottwo Pty Ltd (in liq) [2013] SASCFC 57 Rawson v Samuel (1841) 41 ER 451 Re Equitrust Pty Ltd [2012] NSWSC 1049 Re Gordon Grant & Grant Pty Ltd [1983] 2 Qd R 314 Roadshow Entertainment Pty Ltd v ACN 053006269 Pty Ltd (1997) 42 NSWLR 462 Simoon Pty Ltd v Renbay Systems Pty Ltd (1995) 13 ACLC 1792 Skinner v Jeogla Pty Ltd [2001] NSWCA 15; (2001) 19 ACLC 1163 Category: Procedural and other rulings Parties: Active Adult Management Pty Ltd (in liquidation) (First Plaintiff) LSW Debt Pty Ltd (Second Plaintiff) Michael David Kelso (Third Plaintiff) Milstern Retirement Living Pty Limited (First Defendant) Milstern Health Care Pty Ltd (Second Defendant) Registrar General of New South Wales (Third Defendant Milstern Retirement Services Pty Ltd (Fourth Defendant) Representation: Counsel: E Collins SC with L Shipway (Plaintiffs/Respondents to motion) DL Cook SC (First and Second Defendants/Applicants to motion)