Elderslie Finance Corporation Limited v Newpage Pty Ltd (No 3) [2007] FCA 259

Elderslie Finance Corporation Limited v Newpage Pty Ltd (No 3) [2007] FCA 259

A case for making a freezing order against Martin Yong Heng Yii in the sum of $2,137,000 is made out as there is at least an arguable case for the liquidator under s 588FF, and evidence of funds dissipated for gambling supports the risk. The requirements for orders under s 486A (passport, travel restriction) are not met as there is insufficient evidence of intention to avoid liability by departure or concealment/removal of assets.

Parties
First Plaintiff: Elderslie Finance Corporation Limited; Second Plaintiff: Peter Alexis George; Defendant/first Applicant: Newpage Pty Ltd (Receiver and Manager Appointed) (In Liquidation); Second Applicant: Barry Kenneth Hamilton (in capacity as liquidator of Newpage Pty Ltd); First Respondent: Casino Busters International Pty Ltd; Second Respondent: Roumald Charles Parsons; Third Respondent: Martin Yong Heng Yii
Jurisdiction
Australia
Judgment Date
02 March 2007
Procedural Posture
Corporations – Interlocutory Application (freezing Order) – Winding Up / Interlocutory – Freezing Order and Ancillary Relief
Outcome
Freezing order granted (ex parte) against Martin Yong Heng Yii for the sum of $2,137,000; application for passport/travel restrictions under s 486A refused at this stage.
Legal Topics
Freezing Order, Voidable Transaction, Insolvent Transaction, Winding Up, Disclosure Order, Prima Facie Case, Section 588 FF Corporations Act, Section 486 a Corporations Act
Corporations Equity Insolvency Freezing Order Voidable Transaction Insolvent Transaction Winding Up Disclosure Order +3 more

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Parties

Elderslie Finance Corporation Limited

First Plaintiff

Peter Alexis George

Second Plaintiff

Newpage Pty Ltd (Receiver and Manager Appointed) (In Liquidation)

Defendant/first Applicant

Barry Kenneth Hamilton (in capacity as liquidator of Newpage Pty Ltd)

Second Applicant

Casino Busters International Pty Ltd

First Respondent

Roumald Charles Parsons

Second Respondent

Martin Yong Heng Yii

Third Respondent

Procedural Posture

Corporations – Interlocutory Application (freezing Order) – Winding Up / Interlocutory – Freezing Order and Ancillary Relief

Legal Issues

  1. 1 Whether a freezing order should be made against Martin Yong Heng Yii
  2. 2 Whether there is an arguable case under s 588FF of the Corporations Act 2001 (Cth) for voidable transaction/insolvent transaction against Mr Yii
  3. 3 Whether orders under s 486A of the Corporations Act 2001 (Cth) (surrender of passport/prohibition from leaving) should be made against Mr Yii

Ratio Decidendi

A case for making a freezing order against Martin Yong Heng Yii in the sum of $2,137,000 is made out as there is at least an arguable case for the liquidator under s 588FF, and evidence of funds dissipated for gambling supports the risk. The requirements for orders under s 486A (passport, travel restriction) are not met as there is insufficient evidence of intention to avoid liability by departure or concealment/removal of assets.

Court Disposition

Freezing order granted (ex parte) against Martin Yong Heng Yii for the sum of $2,137,000; application for passport/travel restrictions under s 486A refused at this stage.

Orders

  • Leave to file amended interlocutory process and affidavit of Barry Kenneth Hamilton (26 Feb 2007) granted.
  • Interlocutory application be heard immediately and ex parte.