Humphris, Michael (In his Capacity as Liquidator of Midcharm Pty Ltd)(in liq) & Anor v Jenshol, Max Samuel & Anor (No2) [1997] FCA 1192

Humphris, Michael (In his Capacity as Liquidator of Midcharm Pty Ltd)(in liq) & Anor v Jenshol, Max Samuel & Anor (No2) [1997] FCA 1192

The applicants are entitled to relief in the form of an account of profits rather than damages or equitable compensation regarding company property held or received by the respondents. The Court granted leave to proceed against the second respondent to the extent of obtaining an inquiry and taking of accounts, but withheld leave to enforce any judgment against the second respondent pending further order, and maintained restraint orders (Mareva injunction) to preserve assets for the applicants. The affidavits and delivery of documents were ordered to ensure full disclosure and facilitate the account of profits.

Jurisdiction
Australia
Judgment Date
05 November 1997
Procedural Posture
Civil / Post Trial Judgment and Orders
Outcome
Relief granted substantially as sought by the applicants; account of profits to be taken; Mareva injunction continued; cross-claim dismissed; costs awarded to applicants.
Legal Topics
['liquidation' 'constructive Trust' 'mareva Injunction' 'account of Profits' 'property of Company']
['corporations Law' 'equity'] ['liquidation' 'constructive Trust' 'mareva Injunction' 'account of Profits' 'property of Company']

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Procedural Posture

Civil / Post Trial Judgment and Orders

Legal Issues

  1. 1 ['Whether the applicants are entitled to relief in respect of assets held by respondents alleged to be property of Midcharm Pty Ltd (in liquidation)' 'Whether an account of profits or damages/equitable compensation should be granted as a remedy' 'Whether leave should be granted under s 471B of the Corporations Law to proceed against the second respondent given its liquidation' 'Whether a Mareva injunction should continue in relation to the assets']

Ratio Decidendi

The applicants are entitled to relief in the form of an account of profits rather than damages or equitable compensation regarding company property held or received by the respondents. The Court granted leave to proceed against the second respondent to the extent of obtaining an inquiry and taking of accounts, but withheld leave to enforce any judgment against the second respondent pending further order, and maintained restraint orders (Mareva injunction) to preserve assets for the applicants. The affidavits and delivery of documents were ordered to ensure full disclosure and facilitate the account of profits.

Court Disposition

Relief granted substantially as sought by the applicants; account of profits to be taken; Mareva injunction continued; cross-claim dismissed; costs awarded to applicants.

Orders

  • ['Leave granted to applicants nunc pro tunc to continue proceeding against second respondent, limited to making inquiries and taking accounts (not enforcement without further leave)' 'Declaration that various rights and property, as described in the orders, are property of Midcharm Pty Ltd and held on constructive...