FEDERAL COURT OF AUSTRALIA

Westpoint Management Limited (in liq) (Receivers and Managers Appointed) v Theobald, in the matter of Lanepoint Enterprises Pty Ltd (in liq) (Receivers and Managers Appointed) (No 2) [2012] FCA 1131

THE COURT ORDERS THAT:

1.    The formal proof of debt submitted by the plaintiff and dated 31 October 2011 be admitted to proof in the winding up of Lanepoint Enterprises Pty Ltd in the amount of $10,299,565.10.

2.    The plaintiff’s costs of the application to be taxed if not agreed to be costs in winding up of Lanepoint Enterprises Pty Ltd.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Application to admit proof of debt

1    By originating process filed in the Court on 14 December 2011 the plaintiff sought an order that the formal proof of debt submitted by the plaintiff dated 31 October 2011 be admitted in full.

2    The defendant liquidator did not enter an appearance, essentially because he is without funds in the liquidation.

Dismissal of interlocutory application

3     On 23 March 2012 a non-party, Bowesco Pty Ltd (ACN 008 915 357) (Bowesco), filed an interlocutory application seeking an order that it be granted leave to participate in proceedings, which application was dismissed: Westpoint Management Limited (in liq) (receivers and managers appointed) v Theobald, in the matter of Lanepoint Enterprises Pty Ltd (in liq) (receivers and managers appointed) [2012] FCA 686.

final order

4    On 12 October 2012 I made orders substantially in the terms of the originating process. My reasons for doing so were substantially in accordance with the submissions of counsel for the plaintiff made orally at the hearing, as follows.

5    Counsel submitted that there were two bases on which the plaintiff claimed the relief sought. Firstly, that the existence and quantum of the debt claimed in the proof of debt, other than accruing interest after the date of the winding up, was established by the affidavit of Mr Simon Andrew Read filed 14 December 2011 and, secondly, the existence and quantum of the debt has been subject of consideration by Gilmour J in the winding-up proceedings (Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receiver and Manager Appointed) [No 2] [2009] FCA 493).

6    The plaintiff also submitted it would be an abuse of process for the defendant, if he were to appear, to re-agitate or re-litigate those issues in any event. If it is an abuse of process for Bowesco, as a contributory to the company in liquidation, to agitate or re-litigate the company’s indebtedness then so too it would be an abuse of process on the part of the company and the liquidator to do so.

7    Counsel noted the existence of the debt to the plaintiff and the quantum of the debt that arose under a loan agreement of 23 March 2005. The amounts advanced under the loan agreement were proven by a series of draw down notices appearing at pages 101 to 113 of the affidavit of Mr Read. It also included a statement of account that had been prepared which showed the various draw downs, interest thereon in accordance with the loan agreement and certain payments that had been received by the plaintiff from receivers and managers of the company, Lanepoint Enterprises Pty Ltd: see the affidavit of Mr Read at page 324 and following.

8    Being satisfied to this end I made the orders asked.

Orders

9    The Court orders that:

1.    The formal proof of debt submitted by the plaintiff and dated 31 October 2011 be admitted to proof in the winding up of Lanepoint Enterprises Pty Ltd in the amount of $10,299,565.10.

2.    The plaintiff’s costs of the application to be taxed if not agreed to be costs in winding up of Lanepoint Enterprises Pty Ltd.

Associate:

Dated:    17 October 2012