Bardon Enterprises Pty Ltd v Landmark Building Services Pty Ltd

AND: LANDMARK BUILDING SERVICES PTY LTD Respondent

order made by: NESKOVCIN J DATE OF AMENDED ORDER: 10 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. Pursuant to section 471B of the Corporations Act 2001 (Cth), Mr Fraser Kirchner have leave to proceed with his claims against Landmark Building Services Pty Ltd (ACN 128 846 739) (in liquidation) in County Court of Victoria proceeding number CI-24-01420. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(Delivered ex tempore, revised from the transcript)

NESKOVCIN J: 1 By interlocutory process made on 27 August 2024, the applicant, Mr Fraser Kirchner, an interested party, seeks leave pursuant to s 471B of the Corporations Act 2001 (Cth) to proceed with claims against the defendant Landmark Building Services Proprietary Limited (in liquidation) in County Court of Victoria proceeding number CI-24-01420. Landmark was placed in liquidation by order of the Court made on 28 August 2024. 2 In the County Court proceeding, Mr Kirchner seeks orders for possession of a unique chattel, a Lamborghini motor vehicle, against both an individual, Mr Moutidis, and Landmark, a company of which Mr Moutidis is the director, in circumstances where it is unclear as to the precise ownership of the Lamborghini and in circumstances where Mr Kirchner asserts that he is a secured creditor in respect of the vehicle. I note from the materials filed in support of this application, that Landmark and Mr Moutidis have filed a defence in the County Court proceeding stating that the vehicle is owned by Landmark and registered in the name of Mr Moutidis. 3 The County Court proceeding is listed for a summary judgment hearing on 13 September 2024, although I am informed that Mr Kirchner has agreed with the Liquidator of Landmark, Mr Malcolm Howell, to adjourn that hearing so as to permit the Liquidator time to consider his position in respect of the role, if any, he intends to take in the County Court proceeding. 4 I am informed that the Liquidator consents to leave being granted to Mr Kirchner to proceed with his claims against Landmark. 5 A person who seeks leave must demonstrate that there is a real dispute in relation to which leave is sought, and that there is good reason why it is not appropriate for a proof of debt to be lodged. In Chahwan v Euphoric Pty Ltd [2006] NSWSC 1002 at [40], Barrett J said leave should generally be granted for a proprietary claim which cannot be accommodated in the proof of debt regime. That is apposite to this case. 6 I am satisfied that I should exercise my discretion in favour of granting Mr Kirchner leave to continue the County Court proceeding against Landmark to enable Mr Kirchner to seek the relief which is sought - which, as mentioned, cannot be accommodated in the proof of debt regime. Leave will therefore be granted. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Neskovcin.