B & M Mitchell Pty Ltd (in liquidation) v Mikell Investments Pty Ltd & Divlist Pty Ltd t/as Contemporary Homes [2018] NSWCATAP 168

B & M Mitchell Pty Ltd (in liquidation) v Mikell Investments Pty Ltd & Divlist Pty Ltd t/as Contemporary Homes [2018] NSWCATAP 168

When the sum of $6,000.00 was paid to the Tribunal pursuant to the stay, it ceased to be the property of the appellant; upon failure of the appeal, the amount should be paid to the respondent, as the contingency for return of the money to the appellant did not arise. Section 474 and s 569(3) of the Corporations Act 2001 do not entitle the liquidator to the money as it is no longer property of the company.

Jurisdiction
Australia
Judgment Date
11 July 2018
Procedural Posture
Appeal / Decision on Payment of Monies Held by Tribunal After Dismissal of Appeal
Outcome
The Tribunal orders that the sum of $6,000.00 held by it be paid to the respondent’s solicitors, with directions for provision of trust account details within 14 days.
Legal Topics
['winding Up of Companies' 'security for Judgment' 'trusts Over Funds Held by Tribunal']
['corporate Insolvency' 'civil Procedure'] ['winding Up of Companies' 'security for Judgment' 'trusts Over Funds Held by Tribunal']

Case Brief

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Procedural Posture

Appeal / Decision on Payment of Monies Held by Tribunal After Dismissal of Appeal

Legal Issues

  1. 1 ['Whether the $6,000.00 held by the Tribunal should be paid to the appellant’s liquidator or to the respondent' 'Whether s 474 or s 569(3) of the Corporations Act 2001 applies to funds held by the Tribunal after an unsuccessful appeal']

Ratio Decidendi

When the sum of $6,000.00 was paid to the Tribunal pursuant to the stay, it ceased to be the property of the appellant; upon failure of the appeal, the amount should be paid to the respondent, as the contingency for return of the money to the appellant did not arise. Section 474 and s 569(3) of the Corporations Act 2001 do not entitle the liquidator to the money as it is no longer property of the company.

Court Disposition

The Tribunal orders that the sum of $6,000.00 held by it be paid to the respondent’s solicitors, with directions for provision of trust account details within 14 days.

Orders

  • ['The Registrar is directed to make payment, on a date not before 21 July 2018, to the solicitors for the respondent, Blackwell Short Lawyers, of the sum of $6,000.00 currently held by the Tribunal.' 'Within 14 days of the date of these orders the respondent is directed to provide details of the trust account to...