Rochford, Brian & Anor v Perpetual Trustees Australia Ltd & Ors [1998] FCA 1714

Rochford, Brian & Anor v Perpetual Trustees Australia Ltd & Ors [1998] FCA 1714

There was a serious question to be tried as to whether possession was retaken in contravention of section 440C of the Corporations Law. Given potential detriment to the Company and absence of demonstrated detriment to the lessors, interlocutory relief pending a final hearing was appropriate, provided undertakings as to damages and delivery up were given.

Parties
First Applicant: Brian Rochford; Second Applicant: Michael John Morris Smith; First Respondent: Perpetual Trustees Australia Limited; Second Respondent: Bridgehead Pty Limited; Third Respondent: Gandel Asset Management Pty Limited
Jurisdiction
Australia
Judgment Date
23 September 1998
Procedural Posture
Interlocutory Application / Interlocutory Orders for Possession and Injunction Pending Final Hearing
Outcome
Interlocutory orders granted in favour of applicants, pending final hearing.
Legal Topics
Corporate Administration, Statutory Moratorium, Retail Leasing, Injunctive Relief
Corporations Law Property Law Commercial Law Corporate Administration Statutory Moratorium Retail Leasing Injunctive Relief

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Parties

Brian Rochford

First Applicant

Michael John Morris Smith

Second Applicant

Perpetual Trustees Australia Limited

First Respondent

Bridgehead Pty Limited

Second Respondent

Gandel Asset Management Pty Limited

Third Respondent

Procedural Posture

Interlocutory Application / Interlocutory Orders for Possession and Injunction Pending Final Hearing

Legal Issues

  1. 1 Whether section 440C of the Corporations Law prohibits lessors from retaking possession of premises used, occupied, or possessed by a company in administration.
  2. 2 Whether the Company was in occupation or possession of the premises within the meaning of section 440C.
  3. 3 Whether interlocutory relief should be granted to maintain the status quo pending determination of final relief.

Ratio Decidendi

There was a serious question to be tried as to whether possession was retaken in contravention of section 440C of the Corporations Law. Given potential detriment to the Company and absence of demonstrated detriment to the lessors, interlocutory relief pending a final hearing was appropriate, provided undertakings as to damages and delivery up were given.

Court Disposition

Interlocutory orders granted in favour of applicants, pending final hearing.

Orders

  • Respondents to deliver up possession of the premises to the First Applicant forthwith.
  • Respondents restrained from interfering with Applicants' use, occupation or possession of premises until further order.