Georgopoulos v Sclavos [2010] NSWSC 1341

Georgopoulos v Sclavos [2010] NSWSC 1341

Orders 2 and 4 made on 1 November 2010 were set aside because they were made in the first defendant's absence and it would be unjust for them to stand. The ordered payment of $567,459 to the plaintiff would have placed the burden of retained tax liabilities and receiver's fees on the first defendant, involved distribution of company moneys to shareholders without legal basis, included an undetermined alleged debt of $68,804, and assumed a disputed debt of $17,774 owed by the first defendant. The plaintiff's motion for that payment was therefore dismissed, with interim payments ordered only in proportions supported by the available partnership distribution calculation.

Jurisdiction
Australia
Judgment Date
15 November 2010
Procedural Posture
Application Under Uniform Civil Procedure Rules 2005, R 36.16(2)(b) / Application to Set Aside Orders 2 and 4 Made by Tamberlin AJ on 1 November 2010 in the First Defendant's Absence
Outcome
Orders 2 and 4 made by Tamberlin AJ on 1 November 2010 were set aside, the plaintiff's notice of motion of 8 October 2010 was dismissed, costs were ordered against the first defendant on an indemnity basis for that motion up to and including 1 November 2010, and interim payments from funds in court were directed to...
Legal Topics
['setting Aside Orders Made in Absence' 'receivership Accounts' 'partnership Accounts' 'distribution of Funds Paid Into Court' 'derivative Proceedings Under S 237 of the Corporations Act 2001 (cth)']
['civil Procedure' 'equity' 'partnership' 'corporations'] ['setting Aside Orders Made in Absence' 'receivership Accounts' 'partnership Accounts' 'distribution of Funds Paid Into Court' 'derivative Proceedings Under S 237 of the Corporations Act 2001 (cth)']

Case Brief

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Procedural Posture

Application Under Uniform Civil Procedure Rules 2005, R 36.16(2)(b) / Application to Set Aside Orders 2 and 4 Made by Tamberlin AJ on 1 November 2010 in the First Defendant's Absence

Legal Issues

  1. 1 ["Whether orders 2 and 4 made on 1 November 2010 should be set aside because they were made in the first defendant's absence." 'Whether payment of $567,459 to the plaintiff from funds paid into court was justifiable before taking partnership and receivership accounts.' 'Whether moneys held for or payable to the corporate defendants could be distributed to the plaintiff and first defendant as shareholders.' 'What further steps should be taken for the taking of partnership and receivership accounts.']

Ratio Decidendi

Orders 2 and 4 made on 1 November 2010 were set aside because they were made in the first defendant's absence and it would be unjust for them to stand. The ordered payment of $567,459 to the plaintiff would have placed the burden of retained tax liabilities and receiver's fees on the first defendant, involved distribution of company moneys to shareholders without legal basis, included an undetermined alleged debt of $68,804, and assumed a disputed debt of $17,774 owed by the first defendant. The plaintiff's motion for that payment was therefore dismissed, with interim payments ordered only in proportions supported by the available partnership distribution calculation.

Court Disposition

Orders 2 and 4 made by Tamberlin AJ on 1 November 2010 were set aside, the plaintiff's notice of motion of 8 October 2010 was dismissed, costs were ordered against the first defendant on an indemnity basis for that motion up to and including 1 November 2010, and interim payments from funds in court were directed to...

Orders

  • ['Orders 2 and 4 made by Tamberlin AJ on 1 November 2010 be set aside.' "Order that the plaintiff's notice of motion of 8 October 2010 be dismissed." "Order that the first defendant pay the plaintiff's costs of her notice of motion of 8 October 2010 up to and including 1 November 2010 on the indemnity basis."...