Michael Petrovic Lenin v Richard Albarran & Geoffrey McDonald in their Capacity as Voluntary Administrators of Hazaran Pty Ltd [2002] NSWSC 1066

Michael Petrovic Lenin v Richard Albarran & Geoffrey McDonald in their Capacity as Voluntary Administrators of Hazaran Pty Ltd [2002] NSWSC 1066

Filing and serving a cross-claim for possession constitutes assumption of control or exercise of power to recover property within the meaning of s 441F of the Corporations Act 2001, and thus the restrictions in s 440C do not apply to prevent the plaintiff from taking possession. Even if leave were required under s 440C, leave would be granted given the plaintiff’s agreements with Provident Capital Limited protecting intervening interests.

Parties
Plaintiff: Michael Petrovic Lenin; Defendants: Richard Albarran & Geoffrey McDonald in their Capacity as Voluntary Administrators of Hazaran Pty Ltd
Jurisdiction
Australia
Judgment Date
04 October 2002
Procedural Posture
Application for Possession/declaration / Judgment
Outcome
Declaration made for entitlement to possession; orders for issue of writ of possession; costs awarded to plaintiff.
Legal Topics
Voluntary Administration, Right of Possession, Landlord and Tenant, Relief Against Forfeiture
Corporations Law Property Law Equity Voluntary Administration Right of Possession Landlord and Tenant Relief Against Forfeiture

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 6 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Michael Petrovic Lenin

Plaintiff

Richard Albarran & Geoffrey McDonald in their Capacity as Voluntary Administrators of Hazaran Pty Ltd

Defendants

Procedural Posture

Application for Possession/declaration / Judgment

Legal Issues

  1. 1 Whether s 441F of the Corporations Act 2001 applied to permit the plaintiff to take possession of premises without leave under s 440C
  2. 2 Whether filing and service of a cross-claim for possession constitutes 'entry into possession' or 'assumption of control' under s 441F
  3. 3 Whether court should grant leave to take possession under s 440C if required

Ratio Decidendi

Filing and serving a cross-claim for possession constitutes assumption of control or exercise of power to recover property within the meaning of s 441F of the Corporations Act 2001, and thus the restrictions in s 440C do not apply to prevent the plaintiff from taking possession. Even if leave were required under s 440C, leave would be granted given the plaintiff’s agreements with Provident Capital Limited protecting intervening interests.

Court Disposition

Declaration made for entitlement to possession; orders for issue of writ of possession; costs awarded to plaintiff.

Orders

  • Declaration that plaintiff is entitled to take possession of The Great Northern Hotel, Newcastle, folio identifier 100/834251.
  • Order for leave for plaintiff to have writ of possession issued forthwith as per orders of 12 April 2002 in proceedings 3548/01.