mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404
Outcome: followed
Young J said in Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404 at [35] : The crucial question, therefore, is whether on the evidence before me a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that Vogrig and WVL be restrained from acting for GSS in these proceedings. In answering this question it must be borne in mind that this is an application for a permanent injunction: Yunghanns v Elfic Ltd (unreported, Supreme Court of Victoria, Gillard J, 3 July 1998). It must also be borne in mind that the Court's jurisdiction is an exceptional one; it is to be exercised with appropriate caution and due weight must be given to the public interest in a litigant not being deprived of the solicitor of its choice without due cause. 59 The application was brought at a late stage in the proceedings, after I had reserved judgment. Even if I considered Saxbys had in some way acted improperly, in the exercise of my discretion, I would not at the stage the proceedings had reached have restrained Saxbys from future participation in the proceeding. The cost, inconvenience and practicalities of requiring lawyers to cease to act are a proper basis to refuse relief see Young J in Geelong School Supplies [2006] FCA 1404 at [32] and [51]. Subject to a limited re-opening being permitted to APM after I reserved my judgment, the hearing of the proceedings was otherwise at an end. 60 It was suggested that this Court would need to determine, after a proper hearing, Saxbys' conduct and the effect their conduct had on a fair trial of these proceedings. 61 No proper basis was established for such an enquiry. As I have said, Saxbys have brought the potential conflict to the attention of the relevant persons, and I do not assume that any of their alleged improper conduct has impacted upon a proper and fair trial in these proceedings. No particulars of such impact were provided to the Court even to give cause to make further enquiry.
Case: Hindmarsh Medical Clinic v Hindmarsh Family Practice Pty Ltd (1997) 38 IPR 616
Outcome: cited
The above considerations were all matters I could take into account in considering whether it was in the interests of justice that the proceeding be re-opened: see Smith v New South Wales Bar Association (No 2) [1992] HCA 36 ; (1992) 176 CLR 256 at 266-267, per Brennan, Dawson, Toohey JJ and Gaudron JJ; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478-479, per Clarke JA (with whom Mahoney and Meagher JJA agree); Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 138-139, per Neaves, Bruchett and Ryan JJ; Nikoloski v Ridge Consolidated Pty Ltd (1994) 116 FLR 192, per Higgins J; Boucher v Australian Securities Commission (1996) 71 FCR 122 at 126 at 132, per Spender, Drummond and Merkel JJ; Hindmarsh Medical Clinic v Hindmarsh Family Practice Pty Ltd (1997) 38 IPR 616 at 631-632, per Mansfield J.
Case: Horwath Corporate Pty Ltd v Huie (1999) 32 ACSR 413
Outcome: distinguished
APM also contended that APM's financial position must be considered from its position as a "trustee company", APM having a right of indemnity that was equal to the value of the benefits that it provided to the trust estate and that was equivalent to the value of any liabilities that it has incurred, whilst acting as trustee of the trust. It was further contended that the indemnity ranked as a first charge upon the assets of the trust and, if the Court were not satisfied of the solvency of APM, that it should exercise its power to accede to the request of APM to be removed from the office of trustee (a request made during the course of the hearing) upon certain undertakings being made as to certain funds. In effect, APM wanted a receiver to take the place as trustee upon APM's removal as trustee. In addition, APM submitted in reliance upon comments of Young J in Horwath Corporate Pty Ltd v Huie (1999) 32 ACSR 413 (at 416) that the courts have traditionally have been reluctant to wind up a trustee company as difficult questions of rights and entitlements are involved that would need to be determined by litigation, and there would be no useful purpose in winding up the trustee upon its removal from the office of trustee. 36 I do not consider that the contentions of APM should be accepted. At the outset, I do not accept that the principles applied by Young J in Horwath 32 ACSR 413, which was a case concerning a trust and not a corporation, apply to APM, as was contended by APM. APM cannot be treated as a "trustee company" simply because it holds assets on trust for certain beneficiaries. In any event, unlike that before Young J, this is a case where it is necessary for a skilled insolvency practitioner to go through the books and records, having regard to their current state as accepted by Mr Miller and APM itself. Further, the liquidator once appointed will be in a good position to deal with competing claims, which may involve no litigation at all. 37 The simple answer to the other contentions of APM is that in this case, accepting a right of indemnity exists, it is a right which has not been shown will result in the foreseeable future in the availability of funds to pay creditors. This is a case where there will be issues to be determined as to whether a right of indemnity can be exercised, assuming it exists in theory, because of the actions of APM. There is the question of whether the trustee (APM) has properly incurred liabilities in acting as trustee: only if it has done so will it be entitled to be indemnified out of the trust assets.
Case: Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC 459
Outcome: cited
At the outset I set out some legal principles I rely upon for determining this proceeding: &#8226; APM bears the onus of proving its solvency: s 459C ; &#8226; In order to discharge that onus the Court should generally be presented with the "fullest and best" evidence of the financial position of APM: Commonwealth Bank of Australia v Begonia (1993) 11 ACLC 1075 at 1081; &#8226; Unaudited accounts and unverified claims of ownership or valuation are not ordinarily probative of solvency: Commissioner of Taxation v Simionato Holdings Pty Ltd (1997) 15 ACLC 477; Re Citic Commodity Trading Pty Ltd v JBL Enterprises (WA) Pty Ltd [1998] FCA 232 ; Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC 459 at 463; &#8226; The nature of a company's assets, and its ability to convert those assets into cash within a relatively short time, at least to the extent of meeting all its debts as and when they fall due, must be considered in determining solvency: Rees v Bank of New South Wales [1964] HCA 47 ; (1964) 111 CLR 210; Re Tweeds Garages Ltd [1962] Ch 406 at 410; Simionato Holdings Pty Ltd 15 ACLC 477; Melbase Corporation Pty Ltd v Segenhoe Ltd (1995) 13 ACLC 823 at 832; Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 465-466; &#8226; The appropriate test is the "cash flow test" rather than a "balance sheet test" of insolvency. The adoption of a cash flow test for solvency does not mean that the extent of the company's assets is irrelevant to the inquiry. The credit resources available to the company must also be taken into account: Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666 at 671 per Barwick CJ (with whom McTiernan and Windeyer JJ agreed); Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 466; Taylor v ANZ Banking Group Ltd (1988) 6 ACLC 808 at 812; &#8226; The question of solvency must be assessed at the date of the hearing, although relevant future events are not to be ignored: Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 466-467.
Case: Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128
Outcome: cited
The above considerations were all matters I could take into account in considering whether it was in the interests of justice that the proceeding be re-opened: see Smith v New South Wales Bar Association (No 2) [1992] HCA 36 ; (1992) 176 CLR 256 at 266-267, per Brennan, Dawson, Toohey JJ and Gaudron JJ; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478-479, per Clarke JA (with whom Mahoney and Meagher JJA agree); Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 138-139, per Neaves, Bruchett and Ryan JJ; Nikoloski v Ridge Consolidated Pty Ltd (1994) 116 FLR 192, per Higgins J; Boucher v Australian Securities Commission (1996) 71 FCR 122 at 126 at 132, per Spender, Drummond and Merkel JJ; Hindmarsh Medical Clinic v Hindmarsh Family Practice Pty Ltd (1997) 38 IPR 616 at 631-632, per Mansfield J.
Case: Melbase Corporation Pty Ltd v Segenhoe Ltd (1995) 13 ACLC 823
Outcome: cited
At the outset I set out some legal principles I rely upon for determining this proceeding: &#8226; APM bears the onus of proving its solvency: s 459C ; &#8226; In order to discharge that onus the Court should generally be presented with the "fullest and best" evidence of the financial position of APM: Commonwealth Bank of Australia v Begonia (1993) 11 ACLC 1075 at 1081; &#8226; Unaudited accounts and unverified claims of ownership or valuation are not ordinarily probative of solvency: Commissioner of Taxation v Simionato Holdings Pty Ltd (1997) 15 ACLC 477; Re Citic Commodity Trading Pty Ltd v JBL Enterprises (WA) Pty Ltd [1998] FCA 232 ; Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC 459 at 463; &#8226; The nature of a company's assets, and its ability to convert those assets into cash within a relatively short time, at least to the extent of meeting all its debts as and when they fall due, must be considered in determining solvency: Rees v Bank of New South Wales [1964] HCA 47 ; (1964) 111 CLR 210; Re Tweeds Garages Ltd [1962] Ch 406 at 410; Simionato Holdings Pty Ltd 15 ACLC 477; Melbase Corporation Pty Ltd v Segenhoe Ltd (1995) 13 ACLC 823 at 832; Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 465-466; &#8226; The appropriate test is the "cash flow test" rather than a "balance sheet test" of insolvency. The adoption of a cash flow test for solvency does not mean that the extent of the company's assets is irrelevant to the inquiry. The credit resources available to the company must also be taken into account: Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666 at 671 per Barwick CJ (with whom McTiernan and Windeyer JJ agreed); Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 466; Taylor v ANZ Banking Group Ltd (1988) 6 ACLC 808 at 812; &#8226; The question of solvency must be assessed at the date of the hearing, although relevant future events are not to be ignored: Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 466-467.
Case: Nikoloski v Ridge Consolidated Pty Ltd (1994) 116 FLR 192
Outcome: cited
The above considerations were all matters I could take into account in considering whether it was in the interests of justice that the proceeding be re-opened: see Smith v New South Wales Bar Association (No 2) [1992] HCA 36 ; (1992) 176 CLR 256 at 266-267, per Brennan, Dawson, Toohey JJ and Gaudron JJ; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478-479, per Clarke JA (with whom Mahoney and Meagher JJA agree); Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 138-139, per Neaves, Bruchett and Ryan JJ; Nikoloski v Ridge Consolidated Pty Ltd (1994) 116 FLR 192, per Higgins J; Boucher v Australian Securities Commission (1996) 71 FCR 122 at 126 at 132, per Spender, Drummond and Merkel JJ; Hindmarsh Medical Clinic v Hindmarsh Family Practice Pty Ltd (1997) 38 IPR 616 at 631-632, per Mansfield J.
Case: Re Citic Commodity Trading Pty Ltd v JBL Enterprises (WA) Pty Ltd [1998] FCA 232
Outcome: cited
At the outset I set out some legal principles I rely upon for determining this proceeding: &#8226; APM bears the onus of proving its solvency: s 459C ; &#8226; In order to discharge that onus the Court should generally be presented with the "fullest and best" evidence of the financial position of APM: Commonwealth Bank of Australia v Begonia (1993) 11 ACLC 1075 at 1081; &#8226; Unaudited accounts and unverified claims of ownership or valuation are not ordinarily probative of solvency: Commissioner of Taxation v Simionato Holdings Pty Ltd (1997) 15 ACLC 477; Re Citic Commodity Trading Pty Ltd v JBL Enterprises (WA) Pty Ltd [1998] FCA 232 ; Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC 459 at 463; &#8226; The nature of a company's assets, and its ability to convert those assets into cash within a relatively short time, at least to the extent of meeting all its debts as and when they fall due, must be considered in determining solvency: Rees v Bank of New South Wales [1964] HCA 47 ; (1964) 111 CLR 210; Re Tweeds Garages Ltd [1962] Ch 406 at 410; Simionato Holdings Pty Ltd 15 ACLC 477; Melbase Corporation Pty Ltd v Segenhoe Ltd (1995) 13 ACLC 823 at 832; Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 465-466; &#8226; The appropriate test is the "cash flow test" rather than a "balance sheet test" of insolvency. The adoption of a cash flow test for solvency does not mean that the extent of the company's assets is irrelevant to the inquiry. The credit resources available to the company must also be taken into account: Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666 at 671 per Barwick CJ (with whom McTiernan and Windeyer JJ agreed); Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 466; Taylor v ANZ Banking Group Ltd (1988) 6 ACLC 808 at 812; &#8226; The question of solvency must be assessed at the date of the hearing, although relevant future events are not to be ignored: Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 466-467.
Case: Rees v Bank of New South Wales [1964] HCA 47 ; (1964) 111 CLR 210
Outcome: cited
At the outset I set out some legal principles I rely upon for determining this proceeding: &#8226; APM bears the onus of proving its solvency: s 459C ; &#8226; In order to discharge that onus the Court should generally be presented with the "fullest and best" evidence of the financial position of APM: Commonwealth Bank of Australia v Begonia (1993) 11 ACLC 1075 at 1081; &#8226; Unaudited accounts and unverified claims of ownership or valuation are not ordinarily probative of solvency: Commissioner of Taxation v Simionato Holdings Pty Ltd (1997) 15 ACLC 477; Re Citic Commodity Trading Pty Ltd v JBL Enterprises (WA) Pty Ltd [1998] FCA 232 ; Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC 459 at 463; &#8226; The nature of a company's assets, and its ability to convert those assets into cash within a relatively short time, at least to the extent of meeting all its debts as and when they fall due, must be considered in determining solvency: Rees v Bank of New South Wales [1964] HCA 47 ; (1964) 111 CLR 210; Re Tweeds Garages Ltd [1962] Ch 406 at 410; Simionato Holdings Pty Ltd 15 ACLC 477; Melbase Corporation Pty Ltd v Segenhoe Ltd (1995) 13 ACLC 823 at 832; Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 465-466; &#8226; The appropriate test is the "cash flow test" rather than a "balance sheet test" of insolvency. The adoption of a cash flow test for solvency does not mean that the extent of the company's assets is irrelevant to the inquiry. The credit resources available to the company must also be taken into account: Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666 at 671 per Barwick CJ (with whom McTiernan and Windeyer JJ agreed); Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 466; Taylor v ANZ Banking Group Ltd (1988) 6 ACLC 808 at 812; &#8226; The question of solvency must be assessed at the date of the hearing, although relevant future events are not to be ignored: Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 466-467.
Case: Re Presha Engineering (Aust) Pty Ltd (1983) 1 ACLC 675
Outcome: cited
In addition to what I have concluded above, there are other matters which demonstrate that APM has not discharged the onus of proving solvency:- (i) APM has failed to comply with the statutory demand of the creditors, and that of a supply creditor, T &amp; G Welding Pty Ltd. (ii) APM has been in default under mortgages over its property, and has no immediate or foreseeable capacity to service the mortgages. (iii) The application for winding up was made on 15 March 2007, over six months ago. On 18 June 2007, in the written submissions of APM, it was stated: [APM] is able to raise sufficient funds with which to pay for its short term creditors and it is anticipated that it will receive further funds in the near future from the sale of a properties [sic] . It is conceded that there are other further supporting creditors. [APM] will be able to use the funds that it is capable of raising and which it is anticipated of receiving in the near future with which to pay these debts. This has not eventuated despite the time lapse and there is no evidence to suggest that there will be sufficient funds to pay creditors in the near or reasonably near future. All the evidence relied upon by APM over recent months simply raised possibilities which have not eventuated. (iv) APM has been involved in disputes and legal proceedings with a number of people in addition to the Supreme Court proceedings mentioned above. The proceedings instituted already do not appear to be capable of resolution in the short term. (v) APM's books and records are incomplete and unsubstantiated. There have been a number of suggestions by APM since this matter was first heard to the effect that the new director Mr Fisher would take steps to put the books of accounts in order these suggestions have not been fulfilled and even Mr Miller in his report of 30 August 2007 necessarily relied upon incomplete and unsubstantiated records. (vi) No director can make a declaration of solvency. The then current directors of APM on 9 June 2006 resolved that APM was solvent as at that date, but this is obviously not sufficient to persuade me that the company was solvent at the date of hearing of this application. (vii) No cash flow statement or projections have been provided by APM despite ample opportunity to do so in these proceedings. (viii) There is no material to demonstrate that the company, in its attempts to refinance or obtain sufficient funding, will succeed in the foreseeable future or at all see Crema (Vic) Pty Ltd v Land Mark Property Developments (Vic) Pty Ltd (2006) 24 ACLC 889, at [172] per Dodds-Streeton J; Re Presha Engineering (Aust) Pty Ltd (1983) 1 ACLC 675 at 677 and Ace Contractors Staff Pty Ltd v Westgarth Development Ltd (1999) FCA 728 ;
Case: Re Tweeds Garages Ltd [1962] Ch 406
Outcome: cited
At the outset I set out some legal principles I rely upon for determining this proceeding: &#8226; APM bears the onus of proving its solvency: s 459C ; &#8226; In order to discharge that onus the Court should generally be presented with the "fullest and best" evidence of the financial position of APM: Commonwealth Bank of Australia v Begonia (1993) 11 ACLC 1075 at 1081; &#8226; Unaudited accounts and unverified claims of ownership or valuation are not ordinarily probative of solvency: Commissioner of Taxation v Simionato Holdings Pty Ltd (1997) 15 ACLC 477; Re Citic Commodity Trading Pty Ltd v JBL Enterprises (WA) Pty Ltd [1998] FCA 232 ; Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC 459 at 463; &#8226; The nature of a company's assets, and its ability to convert those assets into cash within a relatively short time, at least to the extent of meeting all its debts as and when they fall due, must be considered in determining solvency: Rees v Bank of New South Wales [1964] HCA 47 ; (1964) 111 CLR 210; Re Tweeds Garages Ltd [1962] Ch 406 at 410; Simionato Holdings Pty Ltd 15 ACLC 477; Melbase Corporation Pty Ltd v Segenhoe Ltd (1995) 13 ACLC 823 at 832; Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 465-466; &#8226; The appropriate test is the "cash flow test" rather than a "balance sheet test" of insolvency. The adoption of a cash flow test for solvency does not mean that the extent of the company's assets is irrelevant to the inquiry. The credit resources available to the company must also be taken into account: Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666 at 671 per Barwick CJ (with whom McTiernan and Windeyer JJ agreed); Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 466; Taylor v ANZ Banking Group Ltd (1988) 6 ACLC 808 at 812; &#8226; The question of solvency must be assessed at the date of the hearing, although relevant future events are not to be ignored: Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 466-467.
Case: Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666
Outcome: cited
At the outset I set out some legal principles I rely upon for determining this proceeding: &#8226; APM bears the onus of proving its solvency: s 459C ; &#8226; In order to discharge that onus the Court should generally be presented with the "fullest and best" evidence of the financial position of APM: Commonwealth Bank of Australia v Begonia (1993) 11 ACLC 1075 at 1081; &#8226; Unaudited accounts and unverified claims of ownership or valuation are not ordinarily probative of solvency: Commissioner of Taxation v Simionato Holdings Pty Ltd (1997) 15 ACLC 477; Re Citic Commodity Trading Pty Ltd v JBL Enterprises (WA) Pty Ltd [1998] FCA 232 ; Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC 459 at 463; &#8226; The nature of a company's assets, and its ability to convert those assets into cash within a relatively short time, at least to the extent of meeting all its debts as and when they fall due, must be considered in determining solvency: Rees v Bank of New South Wales [1964] HCA 47 ; (1964) 111 CLR 210; Re Tweeds Garages Ltd [1962] Ch 406 at 410; Simionato Holdings Pty Ltd 15 ACLC 477; Melbase Corporation Pty Ltd v Segenhoe Ltd (1995) 13 ACLC 823 at 832; Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 465-466; &#8226; The appropriate test is the "cash flow test" rather than a "balance sheet test" of insolvency. The adoption of a cash flow test for solvency does not mean that the extent of the company's assets is irrelevant to the inquiry. The credit resources available to the company must also be taken into account: Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666 at 671 per Barwick CJ (with whom McTiernan and Windeyer JJ agreed); Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 466; Taylor v ANZ Banking Group Ltd (1988) 6 ACLC 808 at 812; &#8226; The question of solvency must be assessed at the date of the hearing, although relevant future events are not to be ignored: Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 466-467.
Case: Smith v New South Wales Bar Association (No 2) [1992] HCA 36 ; (1992) 176 CLR 256
Outcome: cited
The above considerations were all matters I could take into account in considering whether it was in the interests of justice that the proceeding be re-opened: see Smith v New South Wales Bar Association (No 2) [1992] HCA 36 ; (1992) 176 CLR 256 at 266-267, per Brennan, Dawson, Toohey JJ and Gaudron JJ; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478-479, per Clarke JA (with whom Mahoney and Meagher JJA agree); Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 138-139, per Neaves, Bruchett and Ryan JJ; Nikoloski v Ridge Consolidated Pty Ltd (1994) 116 FLR 192, per Higgins J; Boucher v Australian Securities Commission (1996) 71 FCR 122 at 126 at 132, per Spender, Drummond and Merkel JJ; Hindmarsh Medical Clinic v Hindmarsh Family Practice Pty Ltd (1997) 38 IPR 616 at 631-632, per Mansfield J.