Constantinidis & Anor v Landcorp (NSW) Pty Ltd (in liq) & Ors [2011] NSWSC 743

Constantinidis & Anor v Landcorp (NSW) Pty Ltd (in liq) & Ors [2011] NSWSC 743

Because Macready AsJ had refused leave under s 471B on the basis that the Plaintiffs had not established a serious question to be tried against DOHMC, and the Plaintiffs identified no further matter overcoming those deficiencies, the proceedings should not remain on foot against DOHMC. On the objective construction and commercial purpose of clause 31 of the Sale Contract, dismissal of the proceedings against DOHMC meant the controlled monies were to be paid to DOHMC, even though proceedings remained against other parties. A short stay was appropriate because the funds would remain secure in the controlled moneys account and the Plaintiffs should have time to consider whether to appeal.

Jurisdiction
Australia
Judgment Date
19 July 2011
Procedural Posture
Equity Division Proceedings Concerning Dismissal Against a Company in Liquidation and Release of Controlled Monies / Notice of Motion by Third Defendant and Related Interlocutory Applications After Refusal of Leave Under S 471 B of the Corporations Act 2001 (cth)
Outcome
Further Amended Statement of Claim dismissed as against Third Defendant; controlled monies ordered to be paid to Third Defendant; orders stayed for 28 days subject to further order.
Legal Topics
['leave to Proceed Against Company in Liquidation' 'dismissal of Proceedings' 'controlled Moneys Account' 'costs' 'stay of Orders' 'substituted Service']
['corporations Law' 'civil Procedure' 'equity' 'real Property'] ['leave to Proceed Against Company in Liquidation' 'dismissal of Proceedings' 'controlled Moneys Account' 'costs' 'stay of Orders' 'substituted Service']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning Dismissal Against a Company in Liquidation and Release of Controlled Monies / Notice of Motion by Third Defendant and Related Interlocutory Applications After Refusal of Leave Under S 471 B of the Corporations Act 2001 (cth)

Legal Issues

  1. 1 ['Whether the Further Amended Statement of Claim should be dismissed as against Donovan Oates Hannaford Mortgage Corporation Ltd after leave to proceed under s 471B of the Corporations Act 2001 (Cth) had been refused.' 'Whether funds held in the controlled moneys account under clause 31 of the Contract for Sale dated 25 February 2011 should be paid to the Third Defendant.' "Whether the Plaintiffs should pay the Third Defendant's costs, and whether the liquidator should have a separate costs order." "Whether the Plaintiffs should be permitted to call oral evidence from Mr Hannaford or obtain an adjournment of the Third Defendant's motion." 'Whether orders dismissing the claim and releasing the funds should be stayed.' 'What steps should be taken concerning service on the Second and Fourth Defendants.']

Ratio Decidendi

Because Macready AsJ had refused leave under s 471B on the basis that the Plaintiffs had not established a serious question to be tried against DOHMC, and the Plaintiffs identified no further matter overcoming those deficiencies, the proceedings should not remain on foot against DOHMC. On the objective construction and commercial purpose of clause 31 of the Sale Contract, dismissal of the proceedings against DOHMC meant the controlled monies were to be paid to DOHMC, even though proceedings remained against other parties. A short stay was appropriate because the funds would remain secure in the controlled moneys account and the Plaintiffs should have time to consider whether to appeal.

Court Disposition

Further Amended Statement of Claim dismissed as against Third Defendant; controlled monies ordered to be paid to Third Defendant; orders stayed for 28 days subject to further order.

Orders

  • ["The liquidator's application that the Plaintiffs pay his costs of the proceedings generally was not acceded to at this stage." 'The Further Amended Statement of Claim filed 6 May 2011 be dismissed against the Third Defendant.' 'The funds held in the controlled moneys account in the name of Brett Scott, solicitor,...