In the matter of Xpress Fuel Australia Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) [2023] NSWSC 692

In the matter of Xpress Fuel Australia Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) [2023] NSWSC 692

The Court’s power under s 108 Civil Procedure Act 2005 (NSW) extends to making orders for examination and production of documents relating to compliance with orders for delivery up of assets, provided evidence raises material questions about compliance that warrant investigation. This applies to enforcement of non-monetary orders and is supported, where necessary, by an appropriate affidavit or by dispensation under s 14. Orders are confined to investigation regarding compliance with prior orders since their making, not broader inquiry.

Parties
First Plaintiff: Barry Kogan and Katherine Sozou in their capacity as joint and several receivers and managers of Xpress Fuel Australia Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) ACN 142 291 081; Second Plaintiff: Barry Kogan and Katherine Sozou in their capacity as joint and several receivers and managers of Xpress Group Australia Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) ACN 147 059 630; Third Plaintiff: Barry Kogan and Katherine Sozou in their capacity as joint and several receivers and managers of Xpress Transport Solutions Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) ACN 128 784 216; Fourth Plaintiff: Barry Kogan and Katherine Sozou in their capacity as joint and several receivers and managers of Xpress AG Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) ACN 645 093 894; Fifth Plaintiff: Barry Kogan and Katherine Sozou in their capacity as joint and several receivers and managers of Press AG Pty Ltd in its own capacity and as trustee for Press AG Trust (Receivers and Managers Appointed) (Administrator Appointed) ACN 645 098 764; Sixth Plaintiff: Barry Kogan and Katherine Sozou in their capacity as joint and several receivers and managers of Press Australia Pty Ltd in its own capacity and as trustee for Lassab Trust (Receivers and Managers Appointed) (Administrators Appointed) ACN 151 214 836; Seventh Plaintiff: Xpress Fuel Australia Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) ACN 142 291 081; Eighth Plaintiff: Xpress Group Australia Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) ACN 147 059 630; Ninth Plaintiff: Xpress Transport Solutions Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) ACN 128 784 216; Tenth Plaintiff: Xpress AG Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) ACN 645 093 894; Eleventh Plaintiff: Press AG Pty Ltd in its own capacity and as trustee for Press AG Trust (Receivers and Managers Appointed) (Administrator Appointed) ACN 645 098 764; Twelfth Plaintiff: Press Australia Pty Ltd in its own capacity and as trustee for Lassab Trust (Receivers and Managers Appointed) (Administrators Appointed) ACN 151 214 836; First Defendant: Mr Mark Bassal; Second Defendant: Mr Jamie Reginal Thomas Brown; Third Defendant: Unified Holdings Pty Ltd (formerly Xpress Aust NSW Pty Ltd) ACN 666 849 163; Fourth Defendant: Unified Fuel Solutions Pty Ltd (formerly Xpress Fuel Services Pty Ltd) ACN 666 848 184; Fifth Defendant: Unified Transportation Pty Ltd (formerly Unified Group Admin Pty Ltd and XTS Pty Ltd) ACN 666 849 047; Sixth Defendant: XTS Group Pty Ltd ACN 112 483 271
Jurisdiction
Australia
Judgment Date
22 June 2023
Procedural Posture
Corporations/receivership Proceedings / Interlocutory Orders for Examination and Production; Enforcement of Earlier Court Orders; Orders for Examination Under S 108 Civil Procedure Act
Outcome
Orders made for oral examination and production of documents under s 108 Civil Procedure Act 2005 (NSW), with associated procedural directions, costs reserved, remainder of interlocutory process dismissed.
Legal Topics
Orders for Examination and Production of Documents, Enforcement of Non Monetary Court Orders, Receivership Assets, Section 108 Civil Procedure Act 2005 (nsw), Section 430 Corporations Act 2001 (cth)
Corporations Practice and Procedure Orders for Examination and Production of Documents Enforcement of Non Monetary Court Orders Receivership Assets Section 108 Civil Procedure Act 2005 (nsw) Section 430 Corporations Act 2001 (cth)

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Parties

Barry Kogan and Katherine Sozou in their capacity as joint and several receivers and managers of Xpress Fuel Australia Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) ACN 142 291 081

First Plaintiff

Barry Kogan and Katherine Sozou in their capacity as joint and several receivers and managers of Xpress Group Australia Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) ACN 147 059 630

Second Plaintiff

Barry Kogan and Katherine Sozou in their capacity as joint and several receivers and managers of Xpress Transport Solutions Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) ACN 128 784 216

Third Plaintiff

Barry Kogan and Katherine Sozou in their capacity as joint and several receivers and managers of Xpress AG Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) ACN 645 093 894

Fourth Plaintiff

Barry Kogan and Katherine Sozou in their capacity as joint and several receivers and managers of Press AG Pty Ltd in its own capacity and as trustee for Press AG Trust (Receivers and Managers Appointed) (Administrator Appointed) ACN 645 098 764

Fifth Plaintiff

Barry Kogan and Katherine Sozou in their capacity as joint and several receivers and managers of Press Australia Pty Ltd in its own capacity and as trustee for Lassab Trust (Receivers and Managers Appointed) (Administrators Appointed) ACN 151 214 836

Sixth Plaintiff

Xpress Fuel Australia Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) ACN 142 291 081

Seventh Plaintiff

Xpress Group Australia Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) ACN 147 059 630

Eighth Plaintiff

Xpress Transport Solutions Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) ACN 128 784 216

Ninth Plaintiff

Xpress AG Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) ACN 645 093 894

Tenth Plaintiff

Press AG Pty Ltd in its own capacity and as trustee for Press AG Trust (Receivers and Managers Appointed) (Administrator Appointed) ACN 645 098 764

Eleventh Plaintiff

Press Australia Pty Ltd in its own capacity and as trustee for Lassab Trust (Receivers and Managers Appointed) (Administrators Appointed) ACN 151 214 836

Twelfth Plaintiff

Mr Mark Bassal

First Defendant

Mr Jamie Reginal Thomas Brown

Second Defendant

Unified Holdings Pty Ltd (formerly Xpress Aust NSW Pty Ltd) ACN 666 849 163

Third Defendant

Unified Fuel Solutions Pty Ltd (formerly Xpress Fuel Services Pty Ltd) ACN 666 848 184

Fourth Defendant

Unified Transportation Pty Ltd (formerly Unified Group Admin Pty Ltd and XTS Pty Ltd) ACN 666 849 047

Fifth Defendant

XTS Group Pty Ltd ACN 112 483 271

Sixth Defendant

Procedural Posture

Corporations/receivership Proceedings / Interlocutory Orders for Examination and Production; Enforcement of Earlier Court Orders; Orders for Examination Under S 108 Civil Procedure Act

Legal Issues

  1. 1 Whether examination and production orders under s 108 Civil Procedure Act 2005 (NSW) should be granted to assist enforcement of prior orders regarding assets of receivership companies
  2. 2 Scope and application of s 108 to enforcement of non-monetary (delivery up) orders

Ratio Decidendi

The Court’s power under s 108 Civil Procedure Act 2005 (NSW) extends to making orders for examination and production of documents relating to compliance with orders for delivery up of assets, provided evidence raises material questions about compliance that warrant investigation. This applies to enforcement of non-monetary orders and is supported, where necessary, by an appropriate affidavit or by dispensation under s 14. Orders are confined to investigation regarding compliance with prior orders since their making, not broader inquiry.

Court Disposition

Orders made for oral examination and production of documents under s 108 Civil Procedure Act 2005 (NSW), with associated procedural directions, costs reserved, remainder of interlocutory process dismissed.

Orders

  • Order for First Defendant to attend examination regarding compliance with orders 1(c) and 1(d) of 13 June 2023, confined to asset-related questions since that date.
  • Order for First Defendant to produce documents referring to use, sale, transfer, encumbrance, movement, or location of Annexure B Assets created between 13 June 2023 and date of orders.