Lambros v Urbanlux Homes Pty Ltd (In Liq) [2021] NSWSC 1615

Lambros v Urbanlux Homes Pty Ltd (In Liq) [2021] NSWSC 1615

Dr Lambros had not applied for nor demonstrated a good arguable case for leave to continue proceedings against Urbanlux or Mr Michael Lotz as required by s 500(2) Corporations Act and s 58(3)(b) Bankruptcy Act. Without leave, there is no prospect of judgment, nor evidence to support asset preservation against the third and fourth respondents. There was also no good arguable case for disgorgement under s 37A Conveyancing Act. The claim for damages did not warrant preservation of status quo via injunction, so both motions were dismissed.

Parties
Plaintiff: Dr Mike Lambros; First Defendant: Urbanlux Homes Pty Ltd (ACN 618 206 652) (in liq); Second Defendant: Michael Robert Lotz; Third Respondent: Manfred Lotz; Fourth Respondent: Naraic Building & Pest Inspections Pty Ltd (ACN 601 152 701) in its own right and as trustee for The Naraic Trust
Jurisdiction
Australia
Judgment Date
14 December 2021
Procedural Posture
Interlocutory Application / Ruling on Motions (freezing Order and Interim Injunction)
Outcome
Motions dismissed
Legal Topics
Freezing Orders, Interim Injunctions, Asset Preservation, Corporate Insolvency, Bankruptcy, Creditor Remedies
Practice and Procedure Freezing Orders Interim Injunctions Asset Preservation Corporate Insolvency Bankruptcy Creditor Remedies

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Parties

Dr Mike Lambros

Plaintiff

Urbanlux Homes Pty Ltd (ACN 618 206 652) (in liq)

First Defendant

Michael Robert Lotz

Second Defendant

Manfred Lotz

Third Respondent

Naraic Building & Pest Inspections Pty Ltd (ACN 601 152 701) in its own right and as trustee for The Naraic Trust

Fourth Respondent

Procedural Posture

Interlocutory Application / Ruling on Motions (freezing Order and Interim Injunction)

Legal Issues

  1. 1 Whether the plaintiff has a good arguable case against defendants now in liquidation and bankruptcy
  2. 2 Whether leave is required and a good arguable case demonstrated for leave under s 500(2) of the Corporations Act and/or s 58(3)(b) of the Bankruptcy Act
  3. 3 Whether third party respondents possess, control or influence assets of defendants

Ratio Decidendi

Dr Lambros had not applied for nor demonstrated a good arguable case for leave to continue proceedings against Urbanlux or Mr Michael Lotz as required by s 500(2) Corporations Act and s 58(3)(b) Bankruptcy Act. Without leave, there is no prospect of judgment, nor evidence to support asset preservation against the third and fourth respondents. There was also no good arguable case for disgorgement under s 37A Conveyancing Act. The claim for damages did not warrant preservation of status quo via injunction, so both motions were dismissed.

Court Disposition

Motions dismissed

Orders

  • Order that the plaintiff's amended notice of motion seeking freezing orders is dismissed.
  • Order that the plaintiff pay costs of third and fourth respondents to the amended notice of motion in such amount as may be agreed or assessed.