Ames v Trustees of the Birkenhead Docks

Background facts and affidavit evidence

1. The factual basis of the application was largely undisputed, and emerges from the parties' Points of Claim, Points of Defence and affidavit and documentary evidence. Another company, Australasian Barrister Chambers Pty Ltd (in liq) ("ABCPL") was the registered proprietor of the property (in several lots), which it appears it held in its capacity as custodian for assets which ABCD owned as trustee for the Minasian Superannuation Fund. A Custodian Appointment Deed dated 13 November 2008 between ABCPL and ABCD provided for ABCPL to act as custodian to acquire assets as legal owner on behalf of ABCD in its capacity as trustee for the Minasian Superannuation Fund. The Custodian Appointment Deed also provided, in clauses 8(2) and 8(3), for ABCPL's right to be indemnified from the assets of the Minasian Superannuation Fund in respect of the liabilities which ABCPL incurred as custodian under the Deed. ABCD owned all of the shares in ABCPL at the relevant times.
2. In November 2015, ABCPL transferred the relevant property to ABCD without consideration (Sampson 29.9.16 [31]). On 8 December 2015, Mr Sampson was appointed as liquidator of ABCPL, which was wound up by order of the Court on the application of The Owners - Strata Plan No 21574, the owners corporation of the building in which the property was situated. The winding up application was made in respect of unpaid strata levies due by ABCPL to the owners corporation then exceeding $70,000.
3. By order made on 25 October 2016 by Brereton J, Mr Sampson was appointed as court-appointed receiver of the property and was authorised to sell it to obtain funds to pay the creditors of ABCPL. That order expressly permitted not only the sale of the property by public auction but also its sale by private treaty as Mr Sampson saw fit. There can be no doubt that a sale in that manner was within power and contemplated by the form of order that the Court had made. That order was stayed for a period on the basis of certain undertakings given by Mr Derek Minus, a person associated with both companies, to allow him to apply to terminate the winding up of ABCPL, if so advised. A successful application to terminate the winding up would likely have required that Mr Minus raise sufficient funds to pay out ABCPL's creditors and the costs of the winding up. That stay was not extended by Brereton J when Mr Minus did not bring such an application.
4. On 1 November 2016, there were discussions between Mr Minus and Mr Sampson as to the likely costs of a sale of the property or a settlement involving payment of creditor claims and termination of the winding up of ABCPL. Mr Sampson's evidence is that he then advised Mr Minus that the alternatives were a sale of the property or an application to terminate the winding up, which would then have involved payment of about $192,000 to meet the costs of the winding up, the owners corporation's costs and the debt owed to the owners corporation in full. Mr Sampson also refers to discussions with Mr Minus as to whether Mr Minus had the capacity to raise finance over the property, where he did not have any income stream other than that which would arise under an anticipated contract with the Commonwealth Government for mediation services. Mr Sampson's evidence is that Mr Minus then estimated the value of the property as between $500,000 and $600,000. I do not reach findings as to what was said in this discussion, to the extent it is contested, in an interlocutory application
5. On 1 December 2016, a telephone conversation took place between Mr Minus and Mr Sampson, prior to the hearing at which the stay of Mr Sampson's appointment as receiver of the property lapsed. Mr Sampson's evidence is that Mr Minus had not then put any proposal to resolve the matter, indicated that he did not have the funds available to put a proposal then and indicated that he had not been able to approach a lender without an income stream. Again I do not, reach findings as to what was said in this conversation, to the extent it is contested, in an interlocutory application.
6. On 6 December 2016, Brereton J declined to extend the stay he had previously granted of the order appointing Mr Sampson as receiver, with a power of sale over the property. Mr Sampson took possession of the property on 7 December 2016. ABCD claims that an associated entity, Dispute Resolutions Associates Pty Limited ("DRA") was in occupation of the property under an equitable lease from ABCD, and that Mr Minus was also in occupation of the property under a lease from ABCPL, its former registered proprietor, Mr Sampson does not admit either allegation, and it is not necessary to determine either allegation for the purposes of this application.
7. Correspondence took place between Mr Peile, an advisor that Mr Minus had appointed in December 2016 and Mr Sampson, including in respect of the marketing and sale of the property. By letter dated 12 December 2016, Mr Sampson engaged Jayne Edwards Realty in anticipation of a sale of the property. By letter dated 14 December 2016 to Mr Peile, Mr Sampson advised that he would: "consider offers prior to auction if they are of a significant value and in line with my valuation."
8. On 15 December 2016, Mr Peile advised Mr Sampson that Mr Minus was looking to raise funds to discharge the debts of both the winding up and the receivership; Mr Sampson expressed doubt that Mr Minus had the means or capacity to do so; Mr Peile acknowledged his lack of awareness of Mr Minus's financial position; and Mr Peile suggested that Mr Minus should be given sufficient time to raise finance prior to any sale occurring, and requested the receiver to "protect the value of Mr Minus's asset". Mr Peile's evidence is that Mr Sampson then declined to provide bank details until a more certain settlement figure could be determined, where strata levies and costs of the receivership were accumulating. It seems to me that Mr Sampson's scepticism as to Mr Minus's ability to raise finance had a reasonable basis, where Brereton J had stayed the orders appointing a receiver of the property to allow an application to terminate the winding up, which had then not been brought and has still not been brought.
9. An employee of Mr Sampson's firm was contacted by Mr George James, who was associated with Samanpat, indicating an interest in the property on 19 December 2016. By letter dated 22 December 2016 from Mr Sampson to Mr Peile, Mr Sampson provided a calculation as at 7 December 2016 of the amounts that would be required to be paid to terminate the winding up of ABCD, namely the amounts due to the owners corporation then exceeding $96,000, liquidator's remuneration of in the order of $75,000, legal fees of in the order of $42,000, barrister's fees in the order of $4,500, petitioning creditor's costs, and a further amount to be repaid to the owners corporation for the funding of the receivership application.
10. By email dated 4 January 2017, Ms Edwards instructed a valuer, Mr Brady of Nicholas Brady Valuations, to arrange for a valuation of the property. Mr Sampson received a valuation of the property from Mr Brady on 6 January 2017 which expressed the view that: "We are of the opinion the open market value of the freehold interest in [the property] as at 6 January 2017 and subject to [v]acant [p]ossession, good and marketable title free from encumbrances; and the comments, terms and conditions contained within this report, is in the sum of $550,000 FIVE HUNDRED AND FIFTY THOUSAND DOLLARS) Excl GST."
11. On 12 or 13 January 2017, Ms Greentree, a senior manager at Mr Sampson's firm, indicated to Mr James that Mr Sampson would consider an offer "if it is well above the valuation"; declined to disclose the valuation figure to Mr James; but indicated that: "Any offer would have to be for at least $600,000 to be even considered."
12. Mr Sampson had a further conversation with Mr James, representing Samanpat, in January 2017, in which Mr James indicated he had available funds to buy the property, and on 16 January 2017, Mr James sent an email offering to purchase the property for $618,000 on behalf of Samanpat.
13. Steps were taken to prepare a contract for sale of the property between 17 and 24 January 2017 and, by letter dated 24 January 2017, Mr Sampson advised Mr Minus that he had obtained an offer to purchase the property for $618,000 and that offer exceeded the valuation which he had obtained. By letter dated 24 January 2017, Mr Minus submitted an offer to purchase the property in the name of APLUS Pty Ltd as trustee for the APLUS Family Trust ("A Plus") in the amount of $650,000.
14. By letter dated 25 January 2017, Mr Sampson sought evidence from Mr Minus as to A Plus's capacity to complete a contract and requested nomination of guarantors of its obligations under a contract. Mr Minus did not address those matters in a further letter dated 25 January 2017, which noted that contracts for the sale of the property were to be exchanged that day (although that did not occur until two days later) and contended that: "As you are acting in this matter as Receiver (not Liquidator) you are required by s 402A [sic] of the Corporations Act 2001 to properly deal with my superannuation fund assets to maximise the value obtained for me." As will emerge below, that letter overstated the extent of Mr Sampson's obligations under s 420A of the Corporations Act. By that letter, Mr Minus demanded that Mr Sampson not deal with the property until Mr Minus's offer had been "properly considered" and also sought a copy of the contract of sale of land with the proposed purchaser.
15. Mr Sampson's evidence is that he formed the view that entities under Mr Minus's control were unable to enter into and complete a contract for the sale of the property (Sampson 7.4.17 [33]). By a further letter dated 25 January 2017 to Mr Minus, Mr Sampson advised that: "You have not provided me with any evidence of the capacity of APLUS Pty Ltd … ATF the APLUS F[amily] T[rust] to exchange or complete the contract for purchase of the property. I am not satisfied that A Plus has the capacity to exchange or complete a contract for purchase of the property. I am in receipt of an offer for an amount in excess of the valuation of the property from an arm's length bona fide purchaser. That purchaser has also indicated they are able to complete the sale contract within 30 days. In the circumstances, I intend to exchange the contract for sale with that purchaser."
16. By a further letter dated 25 January 2017, Mr Minus identified an alleged breach of Mr Sampson's duties as receiver as follows: "If you are proceeding to sell my units to my neighbour in Culwulla Chambers without advertising the property, going to auction or giving me the opportunity to purchase at a higher price than [sic] you are breaching your responsibilities as receiver."
17. By an email dated 25 January 2017, a tenant in the building, Mr Cammarata sent an email to Mr Minus asking if he wished to sell "his" property, which is presumably a reference to ABCD's property, and to Mr Cammarata's claimed willingness to pay what Mr Cammarata considered to be "above market value" for that property. That email stated that: "We were wondering if you are interested in selling your suite now or at some time in the near future. If you are we'd be prepared to pay above the going market rate per m2 without the fuss of appointing agents and incurring unnecessary agents [sic] commissions." The receipt of that email, at about the time that Mr Sampson had advised Mr Minus that he was not satisfied of A Plus's capacity to purchase the property, must have appeared to Mr Minus to be a happy coincidence.
18. On or about 27 January 2017, Mr Sampson entered into the Contract for sale of the property to Samanpat, which is the Second Respondent to the proceedings but took no active part in them. Mr Minus was informed of the sale by letter dated 2 February 2017.
19. On 31 January 2017, after Mr Sampson had entered the Contract for sale of the property, Mr Cammarata sent an email to the receiver, which was silent as to any purchase price that he had in mind, as follows: "I understand you have been appointed as the liquidator for [ABCPL]. I am advised that the company is the owner of strata office suite on [address] which may be for sale by auction in the very near future. Would you be kind enough to let me know when the office suite will be sold or auctioned and the name of the agent so I may contact them to register an interest. Thanking you in anticipation."
20. On 15 March 2017, Mr Minus paid the amount of $96,656 into the account of the strata managers for the owners corporation. He did not then seek to terminate the winding up of ABCPL, which would have required that any other debts of ABCPL and fees due to the liquidator also be paid out. It seems to me that a discharge of a debt which brought about the winding up of ABCPL, without the discharge of any other debts of ABCPL or the costs arising from the winding up, and without proof of ABCPL's solvency, is of limited significance for this application.
21. ABCD relies on affidavits of its director, Mr Minus, dated 16 and 17 March and 14 April 2017, which refer to matters which I have addressed in the chronology set out above. In particular, Mr Minus refers in his first affidavit to an email sent by a tenant in the building, Mr Cammarata, to him containing an "offer" to purchase the property "at above the market rate" (in Mr Minus's phrase) and to his having forwarded that email to Mr Sampson, to the absence of later contact between Mr Cammarata and Mr Sampson and to further correspondence between his then solicitors and Mr Sampson. Mr Minus also complains of subsequent conduct of Mr Sampson, in part of his first affidavit which was not in admissible form and was admitted with a limiting order under s 136 of the Evidence Act 1995 (NSW) as submission only and not proof of the asserted facts. Mr Minus also referred to physical features of the property, which he considered were relevant to its valuation, and to attempts that he had previously made to engage other legal advisers to bring proceedings to prevent the sale of the property, which are relevant to the question of delay which I will address below.
22. Mr Minus's second affidavit dated 17 March 2017 deals with the lease of the property to DRA, which he indicates reflected an earlier informal arrangement which was not formalised until 6 December 2016, after Mr Sampson had been appointed as receiver over the property. It is not necessary to determine the question as to the status of that lease for the purposes of this application, and no reliance was placed upon it by Mr Stitt in support of the interlocutory relief sought. Mr Minus also refers to the circumstances in which caveats were placed over the property by himself and DRA. By his third affidavit dated 14 April 2017, Mr Minus refers to an advertisement in respect of the subsequent sale of another property in the building in which the Property is situated and to the price per square metre achieved for that sale. Mr Minus also led evidence, parts of which were admitted with a limiting order as evidence of his understanding only, as to the particular features of the Property which he considered were more desirable than those of that other property.
23. ABCD also relied on Mr Cammarata's affidavit dated 7 April 2017, which refers to his email to Mr Minus on 25 January 2017 to which I have referred above. Mr Cammarata also gave evidence, admitted with a limiting order under s 136 of the Evidence Act as his state of mind only, that what he had in mind (but, I interpolate, does not appear to have communicated to Mr Minus) was that he was prepared to pay up to $12,000 per metre or approximately $840,000 for the property. Mr Cammarata also refers to further communications with the strata manager for the building and subsequently with Mr Sampson's firm in respect of the sale of the property. Mr Cammarata's affidavit does not establish his capacity to fund a purchase of the property.
24. ABCD also relies on Mr Peile's affidavit dated 13 April 2017, which refers to his retainer to advise Mr Minus in relation to the liquidation of ABCPL and the receivership of ABCD from about 11 December 2016 and to his dealings with Mr Sampson in respect of that matter, to which I have referred in the chronology above.
25. Mr Sampson relies on his affidavit dated 29 September 2016, which refers to the circumstances of his appointment as liquidator of ABCPL and to the steps which have been taken in winding up ABCPL since that appointment. Mr Sampson's evidence was that, at 29 September 2016, ABCPL's liabilities as custodian under the Custodian Appointment Deed included at least amounts owed to The Owners - Strata Plan No 21574 in relation to unpaid strata levies, amounts that Mr Minus claimed were owed to him in relation to legal services, which were to be further investigated by the liquidator, and the owners corporation's costs of the winding up application. Mr Sampson's evidence, as to which he was not cross-examined, was that Mr Minus had informed him that ABCD was not able to make payments to ABCPL in respect of the unpaid strata levies or costs of the winding up incurred by ABCPL as custodian.
26. Mr Sampson also relied on his affidavits dated 2 December 2016 and 7 April 2017 which referred to dealings with Mr Minus, to which I have referred in the chronology above. By his affidavit dated 7 April 2017, Mr Sampson also indicates the matters to which he had regard in deciding to exchange the Contract with Samanpat at a price of $618,000 without advertising the property for sale and without offering it for sale by auction. He refers, inter alia, to the fact that ABCPL had a claim for indemnity under the Custodian Appointment Deed against ABCD; that discussions with Mr Minus as to the termination of a winding up of ABCPL had continued for over a year, involving payment of creditors, which would have avoided the need for a sale of the property; that he had not obtained any information that led him to believe that Mr Minus or his companies could pay from their own resources or borrow an amount sufficient to terminate the winding up of ABCD and avoid a receiver's sale of the property; that the receivership had been stayed for six weeks, in which Mr Minus had not proceeded with an application to terminate the winding up of ABCD; that Samanpat's offer to purchase the property exceeded the valuer's market value of the property by over 12%; that the offer provided for prompt exchange and completion of the Contract; and that, in evidence admitted as evidence of his understanding with a limiting order under s 136 of the Evidence Act, a pre-auction sale would avoid agent's commission, auction fees and additional agent's costs and a sale of $618,000 on that basis was the equivalent of a sale at auction at a price of $640,000. Mr Sampson also expressed the view, in evidence admitted as evidence of his understanding with a limiting order under s 136 of the Evidence Act that: "A pre-auction sale met my objective of realizing the Property for market value or above with minimum costs associated with the realization of the Property. I was conscious of the fact that the receivership concerns a property which the Valuation opines is worth $550,000, and the need to contain the costs of realising the Property through the receivership, so I could maximise the return in the Liquidation of [ABCD] to creditors of that company, being Mr Minus and Owners, Strata Plan 21574."
27. Mr Sampson also relies on the affidavits of Ms Bennett dated 19 April 2017 and Ms Greentree dated 19 April 2017. Both are staff members within the receiver's firm and they refer to dealings with the purchaser and Mr Minus in respect of the sale of the property.

Leave to bring this application

1. ABCD recognises the possibility that it requires leave to bring the Interlocutory Application. That possibility arises because Mr Sampson is a receiver appointed by the Court. Mr Marshall, who appears for the receiver, submits that leave must be obtained to interfere with the receiver carrying out his duties as a court-appointed receiver: Ames v Trustees of the Birkenhead Docks [1855] EngR 373; 52 ER 630; (1855) 20 Beav 332 at 353; Re Australasian Barrister Chambers Pty Ltd (in liq) [2017] NSWSC 245 at [7]-[13]. In Meagher, Gummow and Lehane's Equity: Doctrines and Remedies 5th edition, the learned authors observe at [29-120] that: "Any interference with a receiver appointed by the court in the conduct of the receivership, and any interference with the possession of that receiver, is a contempt of court, unless the leave of the court is first obtained."
2. Leave should be granted to ABCD to bring this application, since it is desirable that there be a merits determination of the complaints raised by Mr Minus, at least on an interlocutory basis. It may be that no leave would be required for ABCD to pursue its application for an inquiry under s 423 of the Corporations Act. I otherwise reserve the question whether leave should be granted to ABCD to pursue any final relief.

Whether a serious question to be tried is established as to a breach of s 420A of the Corporations Act

1. Mr Stitt refers to the principles applicable to the grant of an interlocutory injunction, as set out by Gleeson CJ and Crennan J in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65]. In order to obtain interlocutory relief, ABCD must not only demonstrate a prima facie case or serious question to be tried as to its entitlement to the relief sought at the final hearing, but also that damages would not be an adequate remedy, and that the balance of convenience favours the grant of an injunction on an interlocutory basis. The considerations of whether ABCD has established a serious question to be tried and of balance of convenience are interrelated: the stronger its case for final relief, the less that might be required to tip the balance of convenience in its favour; and a stronger case for final relief might be required to justify an injunction, if the balance of convenience is against that course.
2. I now turn to ABCD's pleaded case and Mr Sampson's defence, and then to the basis on which ABCD seeks to establish a serious question to be tried in this application. ABCD contends, by paragraph 3 of its Points of Claim, that the sale of the property took place in breach of the duty arising under s 420A of the Corporations Act, identified as involving some 31 matters, which largely involve a failure to advertise the property in particular ways; the marketing of the property during the Christmas and New Year period, to the extent that it was marketed; failing to follow a suggested recommendation of a valuer for a marketing period in the order of 2-3 months; selling the property to Samanpat, which was associated with the owner of an adjacent lot who was a member of the body corporate of the building; failing to enter negotiations with another possible purchaser; entering into the Contract providing for sale with vacant possession when the receiver allegedly knew or ought to have known that parties associated with ABCD had an unregistered lease over the premises; failing to conduct a public auction and failing to take other steps in the receivership, including failing to allow ABCD a further opportunity to refinance or pay out its debt or accept an offer from Mr Minus which was allegedly greater than the contract price with the purchaser. Mr Stitt did not submit that all of these matters were capable of giving rise to a contravention of s 420A of the Corporations Act in respect of the sale of the property, and it is not apparent that all of them have a connection with the sale process of the property. The matters raised in the hearing largely focused on that sale process.
3. Mr Sampson, in his Points of Defence, admits that there was no advertising campaign for the property, that no advertising sign was placed on the street front of the property and that there was no marketing of the property by a local agent; denies that any offer was received from the suggested other potential purchaser in respect of the property; admits that there was no auction for the property; contends that it was improbable that ABCD or any company associated with Mr Minus had sufficient funds to pay out the receiver or purchase the property, since it had previously been given six weeks in which to do so by Brereton J between late October and mid-December 2016 and contends that: "The Receiver's duty was to obtain market value for the Property. The sale price was higher than the market value the Receiver obtained by a speaking market valuation from a qualified land valuer."
4. Although a range of criticisms of Mr Sampson's conduct are raised in the Interlocutory Process seeking final relief, ABCD relied on the alleged breach of s 420A of the Corporations Act to found its application for interlocutory relief. Mr Stitt noted, in his opening written submissions, that: "The Applicant's prima facie case, in summary, is that the Receiver did not take all reasonable care to sell the Property and failed to advertise or market the Property to the public in breach of section 420A of the Corporations Act 2001." ABCD was wise to put its application for interlocutory relief on that narrower basis, where there would be a real question whether the Court could have been satisfied, at an interlocutory level, of the matters necessary to give rise to a serious question to be tried as to the suggested inquiry into Mr Sampson's conduct generally, and where it would not have been apparent that the orders that the Court could make on a final basis in such an inquiry would not provide adequate relief for ABCD.
5. Section 420A of the Corporations Act relevantly provides that: "(1) In exercising a power of sale in respect of property of a corporation, a controller must take all reasonable care to sell the property for: (a) if, when it is sold, it has a market value - not less than that market value; or (b) otherwise - the best price that is reasonably obtainable, having regard to the circumstances existing when the property is sold. (2) Nothing in subsection (1) limits the generality of anything in section 180, 181, 182, 183 or 184."
6. This case law indicates that this section establishes a statutory test as to whether a controller has breached his or her duty of care in exercising a power of sale, in place of the general law test; it does not confer a right to damages or other remedy; and the remedies that would be available at general law are applied by reference to the duties specified in the section: GE Capital Australia v Davis [2002] NSWSC 1146; (2002) 180 FLR 250 at [55]; Ultimate Property Group Pty Ltd v Lord [2004] NSWSC 114; (2004) 60 NSWLR 646; Florgale Uniforms Pty Ltd (rec and mgr apptd) (in liq) v Orders [2004] VSC 65; (2004) 11 VR 54. A determination whether this section is breached requires examination of the process adopted by the controller to sell the relevant property: Artistic Builders Pty Ltd v Elliott & Tuthill (Mortgages) Pty Ltd [2002] NSWSC 16; (2002) 10 BPR 19,565 at [126] ; Ultimate Property Group Pty Ltd v Lord above at [69]; Florgale Uniforms Pty Ltd (rec and mgr apptd) (in liq) v Orders above at [410], [416]-[419]; Investec Bank (Australia) Ltd v Glodale Pty Ltd [2009] VSCA 97; (2009) 24 VR 617.
7. The principles applicable to an action under s 420A were helpfully summarised in CME Properties (Australia) Pty Ltd v Prime Capital Securities Pty Ltd [2016] WASC 231, to which I drew the parties' attention in the course of submissions. Le Miere J there observed (at [18]) that: "The relevant question for the purposes of s 420A is whether the controller has failed to do what a reasonable and prudent person would do, or has done what a reasonable and prudent person would refrain from doing in the circumstances. The onus of establishing a breach of s 420A rests with the complainant. The two limbs of s 420A(1) are exhaustive and mutually exclusive. Section 420A(1)(a) applies 'if, when [the property] is sold, it has a market value', otherwise s 420A(1)(b) will apply. The introduction of a category of property that is sold without a market value has presented conceptual difficulties in respect of which limb courts are to apply. Competing approaches have been identified."
8. At times, Mr Stitt appeared to proceed on the basis that both s 420A(1)(a) and s 420A(1)(b) of the Corporations Act applied, or that they applied successively, so that s 420A(1)(b) would apply to a property which in fact had a market value if it was not sold on market. It does not seem to me that there is any serious question, on the authorities, that the section operates in that manner, and it seemed to me that Mr Stitt retreated from that proposition in the course of oral submissions, and ultimately accepted that there is no doubt that the property in issue in these proceedings had a market value, and that s 420A(1)(a) and not s 420A(1)(b) of the Corporations Act was applicable. As Mr Marshall points out, the authorities make clear that s 420A(1)(a) applies where a property has a "definite" or "determinable" market value, which is ascertainable by reference to events in a market: Skinner v Jeogla Pty Ltd [2001] NSWCA 15; (2001) 37 ACSR 106 at [40]; GE Capital Australia v Davis above at [116]. Mr Marshall submits, and I accept, that there is no seriously arguable case that a commercial strata title unit in the central business district of Sydney does not have a readily ascertainable market value, with the result that s 420A(1)(a) applies to the exclusion of s 420A(1)(b) in respect of the sale of such a unit.
9. At times, Mr Stitt also appeared to contend that a controller is under a duty to obtain the best price on the sale of a property, although that proposition may have reflected the reliance on s 420A(1)(b) that was ultimately not pressed. Mr Marshall submits, and I accept, that there is no seriously arguable question that a receiver has a duty under s 420A of the Corporations Act to obtain the "best price" as distinct from taking reasonable steps to obtain the market price of property that has a definite or determinable market value. As Mr Marshall points out, it is readily understandable that the legislature has not imposed a duty on a receiver to obtain the "best price" that might conceivably be obtained on the sale of a property, where a receiver also owes duties to act in the interests of creditors, which would often not be served by delaying the sale of a property in the hope that a better price could be achieved.
10. In his opening written submissions, Mr Stitt identified a "serious question to be tried" in the proceedings as to the determination of the meaning of s 420A of the Corporations Act and in particular the meaning of "market value" in that section. A further, and associated, serious question to be tried identified by Mr Stitt is whether market value could be achieved by a sale of the property off-market. Mr Stitt put the proposition that market value could only be achieved by a sale on-market in several ways. He submitted that: "Section 420A places a primary obligation on a Controller (Receiver) to obtain not less than the market value for the property of a corporation. This can only be done if the property, with all reasonable care, is in fact put to the market." Mr Stitt also submitted that: "No question arises in this case as to whether or not the [p]roperty was put to the market by the usual means or all reasonable care was taken in putting the property to the market by reason of the fact that the Receiver admits that the [p]roperty was not marketed. Without more, the Receiver failed to obtain the market value, let alone less than the market value." Mr Stitt similarly submitted that: "A [r]eceiver cannot discharge the statutory obligation by obtaining a valuation (opinion or speculation as to the market value) and then sell the property for a price in line with that opinion or speculation. That is not a sale for "market value" - that is a sale for a price in line with an opinion."
11. It does not seem to me that, as the authorities stand, there is any real uncertainty as to the scope of the concept of "market value" in that section. The term there has its well-established legal meaning, identified in Spencer v Commonwealth of Australia [1907] HCA 82; (1907) 5 CLR 418 at 432, where Griffith CJ considered that concept in respect of the valuation of land and observed that: "In my judgment the test of value of land is to be determined, not by inquiring what price a man desiring to sell could actually have obtained for it on a given day, ie, whether there was in fact on that day a willing buyer, but by inquiring 'What would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?' It is, no doubt, very difficult to answer such a question, and any answer must be to some extent conjectural."
12. In Jovanovic v Commonwealth Bank of Australia [2004] SASC 61; (2004) 87 SASR 570 (in an earlier stage of the proceedings in Fortson Pty Ltd v Commonwealth Bank of Australia [2008] SASC 49; (2008) 100 SASR 162 to which I refer below), the Full Court of the Supreme Court of South Australia held that a closed tender process, without advertising, breached s 420A of the Corporations Act. However, that finding appears to have depended on the facts and the bank's failure to implement expert advice it had received as to the sale process, rather than supporting a mandatory requirement for a sale on market rather than by private treaty. I have not neglected the fact that Mr Stitt places weight on the fact that Mr Brady's valuation report also made recommendations as to a sale process, which, unsurprisingly, did not contemplate the possibility of an above market offer made by a purchaser prior to the commencement of the sale process or a sale by private treaty in response to the offer.
13. Mr Stitt also referred to Fortson Pty Ltd v Commonwealth Bank of Australia above at [29] where Debelle J (with whom Doyle CJ and Bleby J agreed) referred to a definition promulgated by an industry body and adopted by an expert witnesses that: "Market Value is the estimated amount for which an asset should be exchanged on the date of valuation between a willing buyer and a willing seller in an arms-length transaction after proper marketing wherein the parties had each acted knowledgably, prudently and without compulsion." His Honour observed that that definition accorded with the views expressed by Griffiths CJ and Issacs J in Spencer v Commonwealth of Australia above and it seems to me to take the matter no further than the established legal meaning of that concept. Mr Stitt also submitted that "market value" can have at least three possible meanings, namely market value as assessed by a valuer or real estate agent, the price which the market pays at the time the property is sold and a value determined by market research, and that the second meaning is adopted by s 420A of the Corporations Act. It does not seem to me that that proposition is seriously arguable, since the matters to which Mr Stitt refers are not different meanings of that concept, but alternative means by which the market value of property may be established.
14. Mr Stitt also relied on an observation of Debelle J (with whom Doyle CJ and Bleby J agreed) in Fortson Pty Ltd v Commonwealth Bank of Australia above at [27] that the duty under s 420A(1)(a) of the Corporations Act: "requires the mortgagee to put the property on the open market and bring it to the attention of potential purchasers by advertising and responding to all inquiries and expressions of interest."
15. In support of that observation, Debelle J referred to Commercial and General Acceptance Ltd v Nixon [1981] HCA 70; (1982) 152 CLR 491 where Gibbs CJ (at 495) and Mason J (at 505) referred to the concept of sale at market value, but did not address the question whether that could only be achieved by a sale on market. His Honour also referred to Emerson v Custom Credit Corporation Ltd [1992] QCA 154; [1994] 1 Qd R 516 at 521, where the majority treated evidence that the appellant did not advertise and did not seek other possible prospective purchasers, and only negotiated with one purchaser, as consistent with a finding that it did not take reasonable care to ensure the property was sold at market value. In Fortson Pty Ltd v Commonwealth Bank of Australia above, Debelle J also observed (at [30]) that: "In the ordinary course, the sale price achieved on the open market is market value. The price paid by the prudent purchaser will be the price negotiated by voluntary bargaining between the vendor and purchaser, both willing to trade, but neither so anxious that either will overlook any ordinary business consideration. Alternatively, it will be the price paid at auction by a prudent purchaser."
16. The observation of Debelle J in Fortson Pty Ltd v Commonwealth Bank of Australia above, as quoted in paragraph 44 above, is capable of being read as a statement that compliance with s 420A of the Corporations Act requires a sale on the open market, as well as advertising and responding to all enquiries and expressions of interest. The case law to which his Honour referred does not seem to me to establish a mandatory requirement of that kind, applicable irrespective of the particular circumstances. However, I recognise that his Honour's observation is a seriously considered observation, endorsed by three judges of an appellate court.
17. I also recognise that several other authorities appear to be inconsistent with any mandatory requirement that a receiver must advertise a property or that market value for a property can only be achieved by a public sale campaign. In Florgale Uniforms Pty Ltd (rec and mgr apptd) (in liq) v Orders above at [443], Dodds-Streeton J observed that: "In my opinion, the process of evaluating and balancing the competing costs and benefits and the associated risks of various methods of sale will not, in every case, require a formal comparative analysis or documented calculations. All will depend on the circumstances of the individual case, including the scale of the receivership, the value and nature of the property involved, the receiver's expertise in relation to the type of property, relevant expert advice, the advice or input of proprietors and staff, the trading history and marketing of the company, including during the receivership, and other relevant variables in a realistic commercial context."
18. In Swerus v Central Mortgage Registry of Australia Pty Ltd [1989] ANZ Conv R 169; (1988) NSW Conv R 55-407, to which Mr Marshall referred, Cohen J held that a mortgagee did not breach its duty in a sale by private treaty conducted without advertising, where it accepted an offer at market price and thereby avoided delay, advertising expenses and real estate agent's commission. In Vasiliou v Westpac Banking Corporation [2007] VSCA 113; (2007) 19 VR 229 at [54], the Court of Appeal of the Supreme Court of Victoria, in dealing with the exercise of a mortgagee's power of sale under s 77 of the Transfer of Land Act 1958 (Vic), held that a failure to advertise a property for sale would be immaterial if the price obtained was satisfactory. The decision in Sablebrook Pty Ltd v Credit Union Australia Ltd [2008] QSC 242 is not to the contrary, where it turned on the currency of the relevant valuation rather than on the fact of sale by private treaty.
19. It seems to me that there are significant difficulties with any proposition that a sale, made at or above an apparently reliable valuation although without advertising and by private treaty, necessarily contravenes s 420A of the Corporations Act. That section, in its terms, requires a controller to take reasonable care to sell the property for not less than market value, if it has a market value when it is sold. If a receiver obtains a reliable valuation of the property (and, as I will note below, there is no basis in this case to treat the valuation which Mr Sampson obtained as anything other than reliable) and then receives a plainly above market offer for the property, before he or she was about to initiate a marketing campaign or sale process, it is difficult to see why reasonable care to sell the property for not less than market value requires anything more than acceptance of the offer that will bring about that result. It can be accepted that that course may not maximise the sale price of the property, since a higher sale price may or may not have been obtained by incurring additional marketing and sale expenses and the additional delay of a sale process. However, s 420A of the Corporations Act does not impose an obligation to obtain the maximum possible sale price for a property with a definite or determinable value, but only to take reasonable steps to sell the property for not less than its market value.
20. I also have difficulty with an assumption, plainly made in Mr Stitt's submission and possibly made in Fortson Pty Ltd v Commonwealth Bank of Australia above, that the only way to obtain market value for an item of property is to sell on-market rather than by private treaty. It seems to me that market value is capable of determination by evidence and there is no reason to think it is not possible to obtain that value by an off-market or private sale at a sufficiently favourable price. In this case, Mr Stitt advanced several criticisms of Mr Brady's report, initially in objecting to the tender of that report. I do not consider those criticisms undermine the weight to be given to that report, for the same reasons they did not prevent the admission of that report. I set out those reasons in my ex tempore judgment dealing with the tender of that report, which I need not repeat in this judgment. The valuation attributed to the property by Mr Brady was not seriously contested, beyond criticism from the bar table, either by contrary evidence or cross-examination, and there is no serious basis for a factual proposition that the market value of the property was anything other than the value as assessed by Mr Brady's report. It is difficult to see how a sale above that value is not a sale above market value, notwithstanding that it was undertaken by private treaty.
21. However, by reason of the decision in Fortson Pty Ltd v Commonwealth Bank of Australia above, I must find that ABCD can establish a seriously arguable case that a failure to put a property on the open market would, without more, establish a contravention of s 420A of the Corporations Act. I consider that I should properly treat that proposition as at least seriously arguable where it appears to have been accepted in a seriously considered decision of an appellate court.

ABCD's other criticisms of the sale process

1. Mr Stitt advanced several other criticisms of the sale process for the property in written and oral submissions, although it seemed to me that many of those criticisms were directed to a proposition that Mr Sampson had not taken all steps, or all reasonable steps, to obtain the maximum sale price possible, which did not assist ABCD where Mr Sampson's obligation under s 420A of the Corporations Act was only to take reasonable steps to secure the market value of the property. I should address these other criticisms, although the conclusion that I have reached above, by reason of Fortson v Commonwealth Bank of Australia above, is sufficient for ABCD to establish a serious question to be tried.
2. First, Mr Stitt submits that Mr Sampson sold the property to an entity associated with a director of a member of the owners corporation, without any negotiation on price, and that no inquiry was made as to the bona fides or capacity of the purchaser to complete the Contract. Mr Stitt also refers to the fact that the purchaser became aware of the sale of the property by reason of a copy of the Court's judgment being affixed to the front door of the property, in order to give notice of that order to any locksmith who was retained to change the locks. I find it difficult to see that these matters would give rise to any serious question to be tried as to a contravention of s 420A of the Corporations Act. It is difficult to see how the identity of the purchaser, or how the purchaser became aware of the sale of the property, is to the point, where there is no evidence of substance to establish a serious question that the sale of the property was not at or above market price. There is also no evidence to raise any serious question as to the bona fides or capacity of Samanpat to complete the Contract.
3. Second, Mr Stitt submits that, prior to the sale of the property to Samanpat, Mr Sampson received other offers to purchase the property but either ignored or rejected them. Mr Stitt refers to Mr Sampson's failure to pursue the suggestion from Mr Cammarata made on 25 January 2017 that he was interested in purchasing the property for "above market value", which Mr Stitt characterises as an "offer" to purchase the property. Mr Stitt also submits that there was no reason for Mr Sampson to infer that Mr Minus, through A Plus, was not "a genuine prospective purchaser with sufficient funds to complete a purchase of the [p]roperty". Mr Marshall responds that Mr Sampson did not breach any duty by his treatment of the suggested offers of Mr Minus and Mr Cammarata where it was improbable that Mr Minus's company A Plus or ABCD had sufficient funds to purchase the property and he received no offer from Mr Cammarata, although he recognises that Mr Cammarata sent an expression of interest to the receiver on 31 January 2017.
4. This matter does not seem to me to raise a serious question that reasonable steps were not taken to sell the property at market price. Mr Cammarata's communication to Mr Minus was not an offer but, at best, an expression of interest, which did not communicate the value he had in mind, and his communication to Mr Sampson had the same character and was after the date of the Contract. So far as it is suggested that Mr Sampson should have been more active in seeking out Mr Cammarata's interest, that proposition does not seem to me to assist ABCD, where s 420A of the Corporations Act required Mr Sampson to take reasonable steps to obtain market value and did not extend to an obligation to maximise the sale price of the property and no serious question is established that the sale of the property was not at or above market price. So far as reliance is placed on Mr Minus's offer, through A Plus, no serious question is established that it was not reasonable for Mr Sampson not to pursue that offer on the basis of his concern as to Mr Minus's lack of financial capacity and Mr Minus's and A Plus's failure to provide any adequate response to that concern.
5. Third, a criticism is made that Mr Sampson sold the property "in haste over the Christmas/New Year period" when there was no urgency in the sale. The criticism of the timing of the sale is undermined by the recognition in the case law that it is not a breach of a receiver's duty to conduct a sale on a date which is other than ideal: Stone v Farrow Mortgage Services Pty Ltd (in liq) [1999] NSWCA 435; (1999) 12 BPR 22,175; [2000] ANZ ConvR 463 at [6]. However, more fundamentally, it does not seem to me that a serious question of contravention of s 420A of the Corporations Act is raised by that matter, where the timing of the sale was driven by the receipt of Samanpat's offer and there is, as I noted above, no evidence of any substance that that sale was not at or above market price.
6. Fourth, Mr Stitt submits Mr Sampson relied solely on one valuation which was "defective in a number of respects". It is common ground that Mr Sampson relied on one valuation. On its face, that valuation was comprehensive. No serious question to be tried is established that that valuation was defective in any respect, and it seems to me that no serious attempt was made to establish that matter, either by leading admissible evidence of any substance that the property had a higher value, or by seeking to cross-examine the valuer to indicate that any aspect of his assumptions, methodology, reasoning or conclusion was incorrect.
7. Mr Stitt also submits that it can be inferred from the absence of negotiations between Mr James and the receiver after the offer to purchase the property was made on 16 January 2017 that the receiver accepted the first offer made by Mr James without negotiation. While that appears to be the case, it must again be appreciated that s 420A of the Corporations Act does not impose an obligation on a receiver to obtain, or even to take reasonable care to obtain, the best available price where a property has a market value at the time of sale, but only to obtain that market value.
8. Mr Stitt also relies on a communication by a real estate agent to Mr Minus of the per square metre price for another sale in the building, of a barrister's chambers of a smaller size, after the relevant transaction, as indicating a higher "market value" for the property. It does not seem to me that that communication, absent any serious attempt to establish that the properties were comparable or that a higher per square metre price paid for a barrister's chambers of smaller size can be applied to a larger property of a different character, establishes a serious question to be tried that the market value was that higher amount. I also bear in mind that ABCD could have led valuation evidence as to that matter, or sought to cross-examine Mr Brady to put that proposition to him, but did neither.
9. Mr Stitt also criticises other aspects of the conduct of the receivership, including a suggested rejection by Mr Sampson of an offer of a payment of $170,000 by Mr Minus to stop the sale of the property. There was no evidence as to whether Mr Minus had the capacity to make such a payment and, even putting aside that matter, it does not seem to me that that raises any serious question as to a contravention of s 420A of the Corporations Act, which is directed, relevantly, to the question whether reasonable steps were taken to sell the property at market price, not whether some alternative to a sale of the property should have been explored. I do not consider that a serious question to be tried is established, in respect of a contravention of s 420A of the Corporations Act, by reason of any of these matters.

Whether ABCD has established a serious question that it has suffered any loss by reason of any contravention of s 420A of the Corporations Act and other issues as to remedy

1. I therefore proceed, with hesitation, on the basis that ABCD could make out a prima facie case of a breach of s 420A of the Corporations Act, but only on the narrow basis that there is appellate authority that supports the proposition that reasonable steps to obtain market value require that the property be sold on market. I have set out above why I have real reservations as to the cogency of that view.
2. I do not consider that ABCD has established a serious question to be tried that it could establish any loss arising from any contravention of s 420A of the Corporations Act where, if the evidence remains as it is at a final hearing, the Court would find that Mr Sampson had sold the property at above market value, particularly where the saving of agent's and auctioneer's costs is taken into account. Even if a breach of s 420A can be established by a failure to take reasonable care to sell a property for not less than its market value, when market value is in fact achieved, the result would be, as Young CJ in Eq observed in Ultimate Property Group Pty Ltd v Lord above at [69] that: "[U]nless it can be demonstrated … that the property in fact sold for under the market price, it is merely a case of injuria sine damnum. If … by luck, the market price is achieved, then the mortgagor has suffered no loss."
3. In Fortson Pty Ltd v Commonwealth Bank of Australia above, Debelle J (with whom Doyle J and, Bleby J agreed) similarly observed that: "[E]ven if the controller did not exercise reasonable care but the property was in fact sold for its market value, the mortgagor will not have suffered loss and will not succeed." It seems to me that ABCD's inability to establish loss, on the evidence as it stands, is a factor that strongly tends against the grant of interlocutory relief.
4. Mr Marshall also submits that ABCD does not identify how a breach of s 420A of the Corporations Act by the receiver could have the consequence of the Court setting the Contract aside. It appears that ABCD relies on the Court's power under s 423 of the Corporations Act to seek such relief. Mr Marshall did not submit, as I understood it, that an inquiry under s 423 of the Corporations Act could not be used, as a matter of law, to support a claim for compensation or other orders in respect of a breach of s 420A of the Corporations Act. The possibility that a claim may be brought under that section in respect of a contravention of s 420A of the Corporations Act was noted by Campbell J in Artistic Builders Pty Ltd v Elliott & Tuthill (Mortgages) Pty Ltd above, although doubted by Young CJ in Eq in Ultimate Property Group Pty Ltd v Lord above at [72]. It is not necessary to determine that question for the purposes of this application. Mr Marshall also submits that an application under s 423 is not properly available to ABCD, in the absence of bad faith by the receiver. That question is best deferred to the final determination of such an application, where I have held that injunctive relief should not be granted on other grounds.

Balance of convenience

1. Mr Stitt submits that, if the Contract is completed, ABCD will be deprived of the opportunity to have the property properly marketed and sold for market value. I accept that completion of the sale to Samanpat will obviously exclude a further sale process, but any failure to secure the market price for the property is a matter that can readily be addressed by an order for damages. I do not accept Mr Stitt's further submission that it is a relevant detriment that ABCD would be required to prove, by evidence, the market value of the property to establish its claim for damages. That is ordinarily the case in the many claims brought under s 420A of the Corporations Act. It would also ordinarily be the case that a plaintiff will be put to proof of its damages, where an interlocutory injunction is declined on the basis that damages are an adequate remedy; it does not follow that interlocutory injunctions should always be granted, because that would obviate the need for the plaintiff to establish the quantum of its damage.
2. Mr Stitt also submits that the balance of convenience favours ABCD, because the property is unencumbered and there is no chance that the amount the receiver is claiming will not be paid out when the property is sold. It seems to me that that submission does not give adequate weight to the delay that will subsist while proceedings under s 423 of the Corporations Act are continued; to the fact that further costs are likely to be incurred by the receiver and the liquidator during the period of that delay, increasing the claims upon the value of the property to the detriment of ABCPL and its creditors and contributories; and to the potential volatility of the property market and the risk of loss of an existing sale which, on the evidence as it stands, appears to be above market value.
3. Mr Stitt also refers to a suggested misdescription of the purchaser in the Contract, which appears to be a reference to a suggestion made by Samanpat that it may wish to nominate another entity to purchase the property. Mr Stitt also submits that the purchaser had advised the receiver that it "wishes to rescind the contract", which seems to be a somewhat overstated version of the same proposition. It does not seem to me that either of those matters, which could readily be resolved between the receiver and Samanpat as a matter of contract, has any significant impact upon the proper exercise of the Court's discretion. Mr Stitt also submits that Mr Minus has operated from the property for almost ten years and would suffer "significant hardship" if the property was sold. It seems to me that Mr Minus has had a considerable time in which to terminate the winding up of ABCPL if he had the capacity to do so; he has had the benefit of an earlier stay of the receivership orders, made by Brereton J, of which he did not take advantage; and, in any event, the interests that are primarily at stake in this application are those of the Applicant, ABCD, the receiver and those interested in the receivership, including ABCPL and its creditors, and not the personal interests of Mr Minus.
4. Mr Marshall responds that the balance of convenience does not favour the restraint of sale, where damages are an adequate remedy. Mr Marshall also points out that no application is made to terminate the winding up of ABCPL; there is no injection of funds into ABCD to allow it to meet its obligation to indemnify ABCPL or into ABCPL to allow it to meet its obligations, including in respect of the liquidator's costs; that Mr Sampson must ultimately sell the property to satisfy ABCPL's right of indemnity; and, if a sale of the property is to take place in any event, then any loss suffered by ABCPL by reason of an inadequate sale price is a monetary amount, for which damages would ordinarily be an adequate remedy. There is no suggestion that Mr Sampson, or possibly his insurers, would not have the capacity to meet an order for damages against him. In CME Properties (Australia) Pty Ltd v Prime Capital Securities Pty Ltd above at [33], Le Miere J noted the relevance, in determining the balance of convenience in an application for injunctive relief, of extended discussions concerning payout of an outstanding amount and the failure to proceed with that payout. In this case, although ABCD has paid the amount due to the owners corporation, it has not made any attempt to pay out or pay into Court even the amount of liquidator's fees in respect of ABCPL and other costs of which it was advised in December 2016.
5. Mr Marshall also submits that it would be unfair to make an order affecting the rights of Samanpat and that damages are not an adequate remedy for Samanpat which seeks to complete its purchase of the property. I recognise that, as Mr Stitt points out, Samanpat has submitted to any order of the Court. I do not determine the matter by reference to this matter, where Samanpat has not sought to emphasise any particular prejudice that it will suffer in submissions before the Court.
6. Mr Marshall submits there has been delay in bringing ABCD's application and Mr Sampson, ABCD and Samanpat are now subject to a binding contract for sale, which ABCD did not seek to injunct before exchange of contracts. Mr Sampson advised ABCD, by Mr Minus, of his intention to sell the property for $618,000 on 24 January 2017. Mr Minus and ABCD did not seek to injunct that sale at that point. No real explanation is given as to why Mr Minus, who is himself a barrister, could not have approached the Duty Judge between 25 January 2017, when he had asserted a breach of Mr Sampson's duties, and 27 January 2017 when the Contract was exchanged, in order to offer an undertaking as to damages and seek injunctive relief to prevent that exchange. Had he done so, and had that application been successful, then Mr Sampson would not now be exposed to the risk of a claim for damages by Samanpat if the Contract does not proceed to completion. Mr Minus instead took other steps to seek to avoid that sale including making the competing offer through A Plus, placing caveats over the property and not providing certificates of title to the receiver, and first advised of an injunction application in the course of submissions before the Court nearly six weeks later, on 10 March 2017.
7. I will assume, without deciding, that there was no personal fault on Mr Minus's or ABCD's part in these delays, where his evidence is that he had engaged or sought to engage legal representation in the period of the delay. However, delay seems to me to be a significantly relevant matter, notwithstanding that it may arise without personal fault of a party. The case law recognises that delay in seeking an interlocutory injunction is a matter that is important in assessing the balance of convenience: Imac Security Services Pty Ltd v Tyco Australia Pty Ltd [2002] VSC 592 at [44]. The relevance of risk of a loss of a sale and of a receiver's exposure to rescission or a claim for damages which would have been avoided by a prompt application for an injunction was recognised in CME Properties (Australia) Pty Ltd v Prime Capital Securities Pty Ltd above at [34]. It seems to me that ABCD's delay in seeking injunctive relief, assuming for present purposes without deciding that it was without fault on the part of ABCD or Mr Minus, is another factor that tends strongly against the grant of an injunction in the exercise of the Court's discretion.
8. Mr Marshall also submits that an inquiry under s 423 of the Corporations Act would at least take some months. I accept that such an inquiry will likely be complex, given the range of matters raised by ABCD, and will take some time to determine. Mr Sampson and ABCPL would at least be exposed to the risk of a claim for breach of damages by Samanpat as purchaser of the property, to the risk of the loss of a sale that appears to be above market price and to the risk of a market downturn during the period the interlocutory injunction is in place. The evidence does not indicate whether the undertaking as to damages that is offered by ABCD, Mr Minus and his wife Mrs Minasian, will ultimately be sufficient to meet the amount of any such loss.
9. I am satisfied that any relevant injury which ABCD would be likely to suffer if an interlocutory injunction were refused would not outweigh the injury which Mr Sampson, and perhaps more importantly ABCPL and its creditors would suffer, if an interlocutory injunction were granted. It seems to me that the detriment to Mr Sampson and ABCPL and its creditors (including Mr Sampson in his capacity as liquidator) from the grant of an injunction would be substantial, for the reasons noted above. On the other hand, where ABCD was the custodian of the property for ABCPL, the sale of the property would place it in a position to meet its obligations under its indemnity to ABCPL, which is not a detriment to it. To the extent that third parties have, or claim to have, unregistered leases over the property, they will be left to establish their rights. If ABCD is ultimately able to establish that the property was sold without reasonable steps having been taken to achieve market price (as distinct from the maximum possible price that might or might not have been obtained from a longer sale process), and is able to establish a cause of action under s 423 of the Corporations Act or otherwise, it will be left to its right in damages. I am satisfied that the balance of convenience does not support the grant of interlocutory relief, and that relief should also be withheld in the exercise of the Court's discretion by reason of ABCD's delay in seeking it.
10. I note, for completeness, that it is not necessary to address the principles applicable to the grant of an injunction under s 1324 of the Corporations Act, which were considered by Le Miere J in CME Properties (Australia) Pty Ltd v Prime Capital Securities Pty Ltd above at [10]ff, since ABCD did not rely on that section to support its claim for injunctive relief.

Orders and costs

1. For these reasons, I make the following orders:
2. Grant leave to the Applicant, ABCD Corporation Pty Ltd, to bring its Amended Interlocutory Application dated 23 March 2017.
3. The Amended Interlocutory Application dated 23 March 2017 be dismissed with costs. I will hear the parties as to any necessary orders to discharge any undertakings given by Mr Sampson restricting the completion of the Contract while these proceedings have been under way.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 May 2017