Caron v Said Jahani and John McInerney as joint and several liquidators of Courtenay House Capital Trading Group Pty Ltd (In liq) and Courtenay House Pty Ltd (In liq) [2019] NSWCA 293

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Caron v Said Jahani and John McInerney as joint and several liquidators of Courtenay House Capital Trading Group Pty Ltd (In liq) and Courtenay House Pty Ltd (In liq) [2019] NSWCA 293 Hearing dates: 2 December 2019 Date of orders: 02 December 2019 Decision date: 02 December 2019 Before: Basten JA Decision: (1) An order under s 471B of the Corporations Act 2001 (Cth) that the appellants have leave to begin and proceed with the appeal against the second respondent and the third respondent. (2) Pursuant to r 7.6 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) and further or alternatively, the Court's equitable jurisdiction, an order that the appellants be appointed to represent themselves and the Post 21 April 2017 Westpac Investors (as defined in Annexure A to the judgment) in this appeal. (3) Pursuant to r 7.6 of the UCPR and further or alternatively, the Court's equitable jurisdiction, order that the fourth respondent, J P Melocco Pty Ltd, be appointed to represent itself and all beneficial owners other than the Post 21 April 2017 Westpac Investors in this appeal. (4) Pursuant to s 90-15 of the IPS and s 63 of the Trustee Act 1925 (NSW), give a direction and order or advice that – (a) the first respondents are justified in paying the legal costs and disbursements of the appellants and the fourth respondent incurred in relation to and incidental to this appeal; and (b) the first respondents' own costs of both motions and of a submitting appearance in the appeal – in accordance with the process set out in order (5) below. (5) Pursuant to s 90-15 of the IPS and s 63 of the Trustee Act, a direction and order or advice that: (a) the first respondents are justified in paying those legal costs and disbursements incurred pursuant to order (4), calculated at the usual rates of the solicitors and counsel engaged by them, in an amount as approved in accordance with orders (5)(b) and (c) below; (b) the first respondents are justified in paying the amounts referred to in order (5)(a) above upon the passage of resolutions by the Committees of Inspection approving such payments; (c) if the first respondents do not receive approval from the Committees of Inspection to pay the amounts referred to in order (5)(a) above, then any application for approval of legal costs and disbursements on an indemnity trustee basis, is to be referred to a Registrar of the Court of Appeal for examination and approval, and the Registrar's decision in that respect is to be subject to review in the same manner as a registrar's decision approving the remuneration of a liquidator; (d) pursuant to r 1.8 of the Corporations Rules, the provisions of rr 9.4(3) to (7) of the Corporations Rules apply mutatis mutandis to an application for approval of legal costs and disbursements pursuant to order (5)(c) above, save that: (i) to the extent those Corporations Rules require the service of documents by the applicant, service of those documents may be effected by publishing those documents, together with a copy of these orders, on the Website; and (ii) any document served in accordance with order (5)(d)(i) above is deemed to have been served on the date it is published on the Website. (e) until further order, and on an interim basis, any amounts approved in accordance with orders (5)(b) or (c) above are to be paid from the Westpac Accounts. (f) the first respondents are justified in paying from the Westpac Accounts the amounts approved pursuant to orders (5)(b) and (c) above. (g) the question of the fund or funds to which the above costs are allocated is reserved for the determination of the court hearing the appeal. (6) Direct that the appeal be relisted before the Registrar for the fixing of a timetable for further interlocutory steps, such relisting to be at a time convenient to the appellants and the fourth respondent. (7) Otherwise dismiss the motions brought by the appellants and liquidators. (8) The appellants' costs of the motions to be costs in the appeal. (9) Terms used above have the meanings identified in Annexure A to the liquidators' notice of motion filed 1 November 2019, which is incorporated in these orders. Catchwords: CORPORATIONS – unregistered managed investment scheme – winding up – application for directions as to distribution of funds deposited by particular categories of investors