Plaintiff v Defendant

Plaintiff v Defendant - [2008] VSC 206 - VSC 2008 case summary — Zoe

[97]

59 After this report, an exchange of correspondence with Ms Nicholes took place which established that CIC did not have any claim to the Queensbridge property or the Flinders Lane property. By letter dated 1 May 2002, Ms Nicholes wrote to Mr Tuckwell referring to a letter from the CBA which had been sent to Mr Tuckwell dated 22 April 2002. That letter was not in evidence. Ms Nicholes said there were a number of inaccuracies that arose from the CBA's letter to Mr Tuckwell, including the assumption that CIC owns the Queensbridge Street property and the Flinders Lane property. Ms Nicholes said that although CIC was the registered proprietor of the Queensbridge property, it held the property as trustee for the Van Oosterom Family Trust (now the Linton Property Trust). She said that as of 30 June 2001, CIC resigned as trustee and was replaced by Ms Linton as the new trustee. She said that she understood that transfer documents were executed and presented to the CBA, but had not been registered due to differences which arose between Ms Linton and Mr Van Oosterom regarding repayment of the mortgage. She enclosed with the letter a transfer of shares dated 1 July 2001 plus other documents, including a change of trustee document dated 1 July 2001 and a deed of amendment of the Van Oosterom/Linton Property Trust. The letter said that the Flinders Lane property was owned by Ms Linton and Mr Van Oosterom as joint proprietors. Ms Nicholes asserted that in view of the above, she was sure that Mr Tuckwell would agree with her opinion that as an administrator he did not have the right to deal with the Queensbridge property or the Flinders Lane property. Ms Nicholes noted Mr Tuckwell's comments that he would be calling upon the loan accounts of CIC. Ms Nicholes said that Ms Linton's accountants had reviewed the accounts at the year ending June 2000 and advised that there was a nett credit to Ms Linton which remained the case in the accounts as of 4 February 2001, being the date of separation. She said that she noted that in Mr Van Oosterom's affidavit dated 18 April 2002, Mr Van Oosterom admits that he assumed liability for the accounts. Ms Nicholes asked Mr Tuckwell to ensure that the details of the letter were accurately recorded in his report to creditors and that Ms Linton be provided with the minutes of creditors' meetings and the report in her capacity as a creditor in Mr Tuckwell's administration. Finally, she said that her letter would be produced on account of costs if any proceedings were commenced in this matter.[22]

[98]

60 By letter dated 1 May 2002, Mr Tuckwell replied to her letter of 1 May 2002. Mr Tuckwell said he had discussed the issues raised in Ms Nicholes' letter with Ms Linton and Murray Bottrell of the CBA. Mr Tuckwell said that whilst the intention of the planned matrimonial settlement had not been disputed by either party, there still remained the legal question as to whether or not the transactions were brought to a conclusion and in this regard Mr Tuckwell was seeking further advice. Mr Tuckwell said that it appeared that they had common ground for a commercial sale of the Queensbridge property. He said that as already advised, the CBA had instructed him to sell this property (along with the Flinders Lane property) and he had already made inquiry with estate agents regarding a proposed sale by way of auction. He said this course of action was approved by the CBA. He said it was not his intention to formalise property sale proceedings until further discussions with Ms Nicholes and the outcome of the Family Court hearing due on Monday 6 May 2002. He said that, due to legal considerations as to ownership, he would support Ms Linton taking an active part in the sale of the Queensbridge property on a certain basis, including that upon settlement of the property, after paying the mortgage, the nett moneys be held in trust until both parties, that is, Ms Linton and Mr Tuckwell, are in agreement as to legal ownership of the property. Mr Tuckwell referred to the request in Ms Nicholes' letter and indicated that Ms Linton's stance would be reported to creditors at the second meeting to be held on 8 May 2002, and that Ms Linton would be provided with copies of minutes of that meeting. In the final paragraph, Mr Tuckwell said that he requested that Ms Linton respect the legal positions and responsibilities of himself and the bank, and that she understand that time was of the essence in disposing of the properties in a commercial manner to protect the interests of all parties concerned.

[246]

157 In substance, Mr Vink's complaint is as follows. In section four of Mr Tuckwell's report to creditors of 29 April 2002, he says that the available business records were sufficient to audit the financial statements of CIC to comply with s 286 of the Act. Mr Vink says that, despite saying so, Mr Tuckwell testified in VCAT in October and December of 2004 that he had not seen many of the documents relating to CIC. Mr Vink submits that on 17 April 2002, one week after the start of the administration of CIC by Mr Tuckwell, Ms Linton obtained orders in the Family Court for access to the business records of CIC and that Mr Tuckwell was advised of these orders on 23 April 2002. Mr Vink submits that he believes it was vital for Ms Linton to audit the business records to ascertain the quantum of the personal expenses of Mr Van Oosterom for any potential Family Court applications by Mr Van Oosterom. Mr Vink alleged that Mr Van Oosterom had been allocating expenses incurred in relation to his farm to CIC business projects and that purchase orders of the company would establish that. He submits that in Mr Van Oosterom's affidavit of 18 April 2002 in the Family Court, he admitted that in excess of $100,000 in improvements to his Guildford farm may have been billed to his business since his separation. Mr Vink says that in January 2003 Ms Linton made a further application in the Family Court to inspect the business records. Mr Vink says that, despite the orders of the Family Court made 17 April 2002 and 30 January 2003, and the notification of the first order to Mr Tuckwell, Mr Tuckwell admitted that he allowed or authorised the destruction of business records of CIC towards the end of January 2003 without first obtaining the consent of ASIC or the leave of the Family Court. He says that Mr Tuckwell conceded to the Family Court in August 2003 that he had consented to the destruction of business records. He quotes paragraph thirty of Mr Tuckwell's affidavit sworn on 21 August 2003 where Mr Tuckwell states:

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