Ramsay & Anor v Featherston Resources Limited & Ors [2013] NSWSC 1923

Ramsay & Anor v Featherston Resources Limited & Ors [2013] NSWSC 1923

The ex parte orders appointing receivers were set aside because the jurisdictional requirements under s 1323 of the Corporations Act 2001 (Cth) were not satisfied—there was no investigation under the Act or relevant proceeding, and thus no proper foundation for the order. The application for receivership was also not justified under s 67 of the Supreme Court Act 1970 (NSW) or inherent jurisdiction, given the lack of current proceedings for the alleged misconduct and the existence of less intrusive alternative remedies. Plaintiffs' conduct in seeking ex parte receivership without notice and without exhausting lesser remedies was found unreasonable, justifying indemnity costs against them.

Parties
First Plaintiff: David Ramsay; Second Plaintiff: Glenn Tetley; First Defendant: Featherston Resources Limited; Second Defendant: Adveco Fertilisers Pty Limited; Receivers: J.S. Emmett
Jurisdiction
Australia
Judgment Date
10 December 2013
Procedural Posture
Interlocutory Application / Application to Set Aside Ex Parte Orders Appointing Receivers
Outcome
Application to set aside orders appointing receivers allowed; orders appointing receivers set aside; Plaintiffs ordered to pay Defendants' and receivers' costs on indemnity basis.
Legal Topics
Appointment of Receivers, Ex Parte Orders, Setting Aside Orders, Costs (indemnity Basis), Jurisdiction – S 1323 Corporations Act, Court's Discretion
Corporations Law Civil Procedure Appointment of Receivers Ex Parte Orders Setting Aside Orders Costs (indemnity Basis) Jurisdiction – S 1323 Corporations Act Court's Discretion

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Parties

David Ramsay

First Plaintiff

Glenn Tetley

Second Plaintiff

Featherston Resources Limited

First Defendant

Adveco Fertilisers Pty Limited

Second Defendant

J.S. Emmett

Receivers

Procedural Posture

Interlocutory Application / Application to Set Aside Ex Parte Orders Appointing Receivers

Legal Issues

  1. 1 Whether jurisdictional requirements of s 1323 Corporations Act 2001 (Cth) were satisfied for appointment of receiver
  2. 2 Whether orders appointing receivers should be set aside under UCPR 36.15 or 36.16
  3. 3 Whether appointment of receivers was just or convenient under s 67 of Supreme Court Act 1970 (NSW)

Ratio Decidendi

The ex parte orders appointing receivers were set aside because the jurisdictional requirements under s 1323 of the Corporations Act 2001 (Cth) were not satisfied—there was no investigation under the Act or relevant proceeding, and thus no proper foundation for the order. The application for receivership was also not justified under s 67 of the Supreme Court Act 1970 (NSW) or inherent jurisdiction, given the lack of current proceedings for the alleged misconduct and the existence of less intrusive alternative remedies. Plaintiffs' conduct in seeking ex parte receivership without notice and without exhausting lesser remedies was found unreasonable, justifying indemnity costs against them.

Court Disposition

Application to set aside orders appointing receivers allowed; orders appointing receivers set aside; Plaintiffs ordered to pay Defendants' and receivers' costs on indemnity basis.

Orders

  • Note undertaking as to damages given by Plaintiffs from the time of receivers' appointment.
  • Orders 9 and 10 (receivers' appointment) made on 3 December 2013 are set aside.