In the matter of Statewide Office Furniture Pty Ltd [2018] NSWSC 1393

In the matter of Statewide Office Furniture Pty Ltd [2018] NSWSC 1393

Orders for restitution could be made for the sum of $227,435.24 representing funds taken by Simon from Statewide in breach of the Asset Preservation Order, with credit for repayments made; restitution ordered for specific post-order payments from the estate for Simon's legal costs made in breach of restraints, but not for costs paid while properly acting as executor per unreversed orders; leave under s 444GA to transfer shares under DOCA is appropriate as no unfair prejudice arises where shares would be worthless on liquidation; costs and enforcement orders reflect the mixed outcome and existing interlocutory orders.

Jurisdiction
Australia
Judgment Date
10 September 2018
Procedural Posture
Principal Judgment (probate and Corporations) / Post Hearing Determination of Contested Notice of Motion and Originating Process
Outcome
Applicants partially succeeded; orders for restitution in reduced amounts; costs largely to applicants, but not on indemnity basis; leave granted to transfer shares under DOCA; detailed orders as set out below.
Legal Topics
['asset Preservation/freezing Orders' 'voluntary Administration/doca' 'restitution of Company Funds' 'costs Orders (party/party, Interlocutory)' 'enforcement/garnishee' 'section 444 GA Corporations Act' 'administration of Estates']
['equity' 'civil Procedure' 'corporations' 'probate' 'restitution'] ['asset Preservation/freezing Orders' 'voluntary Administration/doca' 'restitution of Company Funds' 'costs Orders (party/party, Interlocutory)' 'enforcement/garnishee' 'section 444 GA Corporations Act' 'administration of Estates']

Case Brief

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Procedural Posture

Principal Judgment (probate and Corporations) / Post Hearing Determination of Contested Notice of Motion and Originating Process

Legal Issues

  1. 1 ['Whether funds dealt with contrary to Asset Preservation Order (APO) should be repaid and on what basis' "Whether funds taken from estate for payment of individual defendant's legal costs should be repaid after relevant costs orders were reversed" 'Whether interlocutory costs are payable forthwith and to what extent prior costs orders allow set-off' 'Whether a garnishee order should issue given Family Court freezing orders' 'Whether deed administrator should recover costs of compliance with a notice to produce' 'Whether leave should be granted under s 444GA Corporations Act for transfer of shares under DOCA and if this would unfairly prejudice shareholders']

Ratio Decidendi

Orders for restitution could be made for the sum of $227,435.24 representing funds taken by Simon from Statewide in breach of the Asset Preservation Order, with credit for repayments made; restitution ordered for specific post-order payments from the estate for Simon's legal costs made in breach of restraints, but not for costs paid while properly acting as executor per unreversed orders; leave under s 444GA to transfer shares under DOCA is appropriate as no unfair prejudice arises where shares would be worthless on liquidation; costs and enforcement orders reflect the mixed outcome and existing interlocutory orders.

Court Disposition

Applicants partially succeeded; orders for restitution in reduced amounts; costs largely to applicants, but not on indemnity basis; leave granted to transfer shares under DOCA; detailed orders as set out below.

Orders

  • ['Defendant Simon Stojic to pay Statewide Office Furniture Pty Limited $227,435.24 by way of restitution for funds contravening freezing order, plus interest.' "Garnishee order to Westpac to pay Statewide funds in Simon's accounts to satisfy above sum." 'Defendant to pay $19,800 (from 17 Nov 2017) and $9,185.90...