NR Addlestone Pty Ltd v Henry and Kogan [2021] NSWSC 1410

NR Addlestone Pty Ltd v Henry and Kogan [2021] NSWSC 1410

The plaintiffs' claims against the receivers were summarily dismissed because the pleading made no complaint about the adequacy of the marketing and sale process, the receivers' unchallenged evidence established an extensive sale process using Savills valuations and JLL advice, and the two pleaded complaints were incapable of raising a triable issue. The individual sales to nominees did not affect the adequacy of the sale because the accepted tender prices were paid. The conceded differential between asserted market value and sale price was not, by itself, sufficient to establish or raise a triable breach of equitable duty or s 420A; any such differential had to be assessed in the context...

Jurisdiction
Australia
Judgment Date
02 November 2021
Procedural Posture
Equity Proceedings Concerning Alleged Breach of Equitable Duty and Breach of S 420 a of the Corporations Act 2001 (cth) in the Sale of Mortgaged Properties by Receivers / Notice of Motion by the First Defendants for Summary Dismissal Under R 13.4 of the Uniform Civil Procedure Rules 2005 (nsw), or Alternatively Strike Out Under R 14.28
Outcome
The plaintiffs' claim against the first defendants, Jonathan Henry and Barry Kogan, was summarily dismissed. The plaintiffs' claim against the second defendant and the second defendant's cross-claim remained on foot.
Legal Topics
['receivers and Managers' 'mortgagee Power of Sale' "controller's Duty of Care Under S 420 A" 'summary Dismissal' 'strike Out of Pleadings' 'market Value and Sale Process']
['mortgages and Securities' 'corporations' 'civil Procedure' 'equity'] ['receivers and Managers' 'mortgagee Power of Sale' "controller's Duty of Care Under S 420 A" 'summary Dismissal' 'strike Out of Pleadings' 'market Value and Sale Process']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Alleged Breach of Equitable Duty and Breach of S 420 a of the Corporations Act 2001 (cth) in the Sale of Mortgaged Properties by Receivers / Notice of Motion by the First Defendants for Summary Dismissal Under R 13.4 of the Uniform Civil Procedure Rules 2005 (nsw), or Alternatively Strike Out Under R 14.28

Legal Issues

  1. 1 ["Whether the plaintiffs' claims against the receivers disclosed a real question to be tried or should be summarily dismissed." 'Whether an alleged substantial difference between market value and sale price, without any pleaded complaint about the sale process, could constitute a triable breach of equitable duty or s 420A of the Corporations Act 2001 (Cth).' 'Whether sales to individual nominees of the successful tenderers, where the tender prices were paid, raised a triable issue about breach of duty.' 'Whether the plaintiffs should instead be given leave to replead allegations concerning the sale process.']

Ratio Decidendi

The plaintiffs' claims against the receivers were summarily dismissed because the pleading made no complaint about the adequacy of the marketing and sale process, the receivers' unchallenged evidence established an extensive sale process using Savills valuations and JLL advice, and the two pleaded complaints were incapable of raising a triable issue. The individual sales to nominees did not affect the adequacy of the sale because the accepted tender prices were paid. The conceded differential between asserted market value and sale price was not, by itself, sufficient to establish or raise a triable breach of equitable duty or s 420A; any such differential had to be assessed in the context...

Court Disposition

The plaintiffs' claim against the first defendants, Jonathan Henry and Barry Kogan, was summarily dismissed. The plaintiffs' claim against the second defendant and the second defendant's cross-claim remained on foot.

Orders

  • ["The plaintiffs' claim against the receivers will be summarily dismissed." 'The parties will be given an opportunity to make submissions as to costs and any further orders, including how the balance of the proceedings are to be progressed.']