Tomlinson v Cut Price Deli Mykytowych v Cut Price Deli Novamaze Pty Ltd v Cut Price Deli [1995] FCA 676

Tomlinson v Cut Price Deli Mykytowych v Cut Price Deli Novamaze Pty Ltd v Cut Price Deli [1995] FCA 676

The Court held that the administrator failed to demonstrate any acceptable reason for the urgent dissolution of the Mareva injunctions. There was insufficient evidence of imminent sale or negotiations justifying removal, and no impediment shown to modifying the injunction if a bona fide sale proposal were advanced. The status quo should be preserved pending further information.

Parties
Applicant: Peter John Tomlinson; Applicant: Jean Tomlinson; First Respondent: Cut Price Deli Pty. Limited (Voluntary Administrator appointed); Second Respondent: Enzo Sgambellone; Third Respondent: Harry Malovany; Fourth Respondent: Peter Hoefler; Fifth Respondent: Ron Harmer; Sixth Respondent: Cut Price Deli (Aust) Pty. Limited (Voluntary Administrator appointed); First Applicant: Bohodar Mykytowych; Lesta Mykytowych; Second Applicant: Vanuxi Pty. Limited; Second Respondent: Cut Price Deli Franchising Pty. Limited; Fourth Respondent: Harry Albert Malovany; First Applicant: Novamaze Pty. Limited; Second Applicant: Darryl Paul Weedman; Second Applicant: Elaine Margaret Weedman; Third Respondent: Luzette McKenzie; Fourth Respondent: Berne No. 7 Pty. Limited; Fifth Respondent: Russell Gordon Donald; Fifth Respondent: Vivian Anne Donald
Jurisdiction
Australia
Judgment Date
29 August 1995
Procedural Posture
Application for Dissolution of Mareva Injunctions / Post Judgment Application During Administration
Outcome
Application dismissed
Legal Topics
Mareva Injunction, Voluntary Administration, Dissolution of Injunctions
Practice and Procedure Corporations Law Mareva Injunction Voluntary Administration Dissolution of Injunctions

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Parties

Peter John Tomlinson

Applicant

Jean Tomlinson

Applicant

Cut Price Deli Pty. Limited (Voluntary Administrator appointed)

First Respondent

Enzo Sgambellone

Second Respondent

Harry Malovany

Third Respondent

Peter Hoefler

Fourth Respondent

Ron Harmer

Fifth Respondent

Cut Price Deli (Aust) Pty. Limited (Voluntary Administrator appointed)

Sixth Respondent

Bohodar Mykytowych

First Applicant

Lesta Mykytowych

Vanuxi Pty. Limited

Second Applicant

Cut Price Deli Franchising Pty. Limited

Second Respondent

Harry Albert Malovany

Fourth Respondent

Novamaze Pty. Limited

First Applicant

Darryl Paul Weedman

Second Applicant

Elaine Margaret Weedman

Second Applicant

Luzette McKenzie

Third Respondent

Berne No. 7 Pty. Limited

Fourth Respondent

Russell Gordon Donald

Fifth Respondent

Vivian Anne Donald

Fifth Respondent

Procedural Posture

Application for Dissolution of Mareva Injunctions / Post Judgment Application During Administration

Legal Issues

  1. 1 Whether Mareva injunctions granted prior to voluntary administration should be dissolved at the application of the administrator
  2. 2 Whether maintenance of Mareva injunctions impedes administration under Part 5.3A of Corporations Law

Ratio Decidendi

The Court held that the administrator failed to demonstrate any acceptable reason for the urgent dissolution of the Mareva injunctions. There was insufficient evidence of imminent sale or negotiations justifying removal, and no impediment shown to modifying the injunction if a bona fide sale proposal were advanced. The status quo should be preserved pending further information.

Court Disposition

Application dismissed

Orders

  • The notice of motion filed 21 August, 1995 be dismissed.
  • The voluntary administrator, Mr. J. Star, pay the respondents' costs of and incidental to the notice of motion.