CIC Insurance Ltd v Hannan & Co Pty Ltd

Judgment 1These are my reasons for having made the following orders and directions today: "1A. The Court directs the plaintiffs to serve an amended Originating Process by 4pm on 20/9/11 claiming final relief by way of declaration as to the plaintiffs' beneficial ownership of the Shares as hereinafter defined.

1. Mr Ron Dean-Willcocks be appointed until further order as Receiver over the shares in Unique World Group Pty Ltd ACN 087 848 011 registered in the name of Allco Securities Pty Ltd ACN 058 845 832 ("Shares"), upon the plaintiffs giving to the Court usual undertaking as to damages.
2. Mr Ron Dean-Willcocks be permitted to: (a)sell the Shares; (b)do all other such things and acts which are consequent to and necessary for a sale of the Shares; and (c)otherwise exercise all the powers conferred by s 420 of the Corporations Act 2001 (Cth) in relation to the Shares.
3. Upon completion of the sale of the Shares, the sale proceeds be held in trust by Mr Ron Dean-Willcocks pending determination of the claim for final relief or earlier order.
4. The plaintiffs to give Allco Finance (Australia) Limited (Receivers and Managers Appointed) 5 days notice of any application for orders or directions in relation to the proposed distribution of the sale proceeds.
5. Costs reserved.
6. The Court directs that these orders be entered forthwith.
7. The Court lists the matter for directions at 10am on 4 October 2011.
8. The Court grants liberty to restore on 3 days' notice." 2The defendant, Allco Securities Pty Ltd ("Allco Securities"), is the holder of 673,422 shares in the capital of Unique World Group Pty Ltd ("Unique World"). 3Each of the plaintiffs says that a part of that parcel of shares in Unique World is held by Allco Securities in trust for that plaintiff. 4Allco Securities has no directors. Its sole member is Allco Finance Australia Pty Ltd ("Allco Finance"), a company currently under the control of receivers and managers. At various times up to January 2009, persons in office as directors of Allco Securities ceased to be directors, the last being Mr Veal who resigned on or about 30 January 2009. Since that time, no steps have been taken by Allco Finance, as the sole member of Allco Securities, to appoint replacement directors or otherwise to cause appropriate administration to be in place in relation to Allco Securities. There has been, for example, no application by the sole member for orders for winding up on the just and equitable ground and the appointment of a liquidator: compare CIC Insurance Ltd v Hannan & Co Pty Ltd [2001] NSWSC 437; (2001) 38 ACSR 245. 5The shares in Unique World appear to represent a major asset of Allco Securities; and the plaintiffs consider themselves to be beneficially entitled to those shares to the exclusion of any interest on the part of Allco Securities itself - except, no doubt, such limited interest as may accrue from any right of indemnity that Allco Securities has as trustee coupled with a right to resort to trust property to satisfy the indemnity. 6The affidavits of Mr Veal, Mr Jones and Mr Coe show that there is a serious question to be tried as to the existence of the beneficial entitlements the plaintiffs claim. 7By an originating process filed in court on the 9th of September, Allco Securities claimed relief as follows: "1. Mr Ron Dean-Willcocks be appointed as Receiver over the shares in Unique World Group Pty Ltd ACN 058 345 832 in its capacity as nominee trustee ("Shares"). 2.Mr Ron Dean-Willcocks be permitted to: a. sell the Shares; b. do all other such things and acts which are consequent to and necessary for a sale of the Shares; and c. otherwise exercise all the powers conferred by a s 420 of the Corporations Act (Cth) 2001 in relation to the Shares.