In the matter of Australasian Barrister Chambers Pty Limited

1. [1]

   HER HONOUR: This is an application by David Sampson, the liquidator of Australasian Barrister Chambers Pty Ltd (in liquidation) (the Company), for an order under section 480 of the Corporations Act 2001 (Cth) that he be released as the liquidator of the Company and that the Company be deregistered.

Service of application

1. [2]

   An initial question arose as to whether the respondent, ABCD Corporation Pty Ltd, had been served with notice of the application. ABCD Corporation is a creditor of the Company and also a shareholder. The directors and shareholders of ABCD Corporation are Derek Minus and his wife. Mr Minus, also a barrister, appeared before Gleeson JA in the Corporations List this morning and also before me and informed the Court:

2. [3]

   Mr Minus handed up a letter from his wife, who stated in the letter:

3. [4]

   On the issue of service, Mr Sampson read two affidavits by his solicitor, Nicholas Dale of Gillis Delaney Lawyers. Mr Dale deposed that he had notified Mr Minus of this application by email on 7 February 2020. Mr Dale also deposed that he had acted for the liquidator in these proceedings since late 2015 and, in the course of doing so, had communicated with Mr Minus by email on numerous occasions. Mr Dale deposed that Mr Minus has also appeared on numerous applications as either a creditor or, with leave, as a director of ABCD Corporation before Brereton J in 2016 and 2017 and before Black J in the period from 2017 to 2019.

4. [5]

   As to the requirements for service, rule 2.7(2)(a) of the Supreme Court (Corporations) Rules 1999 (NSW) provides:

   1. (1)

      As soon as practicable after filing an interlocutory process and, in any case, at least 3 days before the date fixed for hearing, the applicant must serve a copy of the interlocutory process and any supporting affidavit on:

5. [6]

   Rule 3.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides:

6. [7]

   A number of documents filed by Mr Minus with the Court shed light on the position: section 157 of the Evidence Act 1995 (NSW). On 16 March 2017, a Notice of Removal of Solicitor was filed by ABCD Corporation and Mr Minus. The relevant form (Form 78, UCPR 7.27) requires the party filing it to provide their contact details. For ABCD Corporation, the following contact details were given:

7. [8]

   On 31 August 2017, Mr Dale served the Interlocutory Process by an email to Mr Minus. That is, of course, more than two years ago. The Interlocutory Process sought a range of relief which has been progressively determined by the Court ever since.

8. [9]

   On 5 September 2019, Mr Minus (also a bankrupt) was granted leave to manage ABCD Corporation: Minus, in the matter of ABCD Corporation Pty Ltd [2019] FCA 1523. The Australian Securities and Investments Commission (ASIC) intervened in the proceedings and sought a condition, which Jagot J imposed, that the Company not engage in any trading activity in any capacity other than as trustee of the Minasian Superannuation Fund.

9. [10]

   On 17 December 2019, Mr Minus filed a Notice of Appearance (Form 4, rule 2.9) noting that he, a director of ABCD Corporation, intended to appear on 18 December 2019 to oppose another Interlocutory Process filed by Mr Sampson to have his remuneration as liquidator approved. The contact details provided on the form included Mr Minus’ email address to which the liquidator’s solicitor has been corresponding. On 18 and 20 December 2019, Black J heard Mr Sampson’s application for his remuneration as liquidator to be approved. His Honour granted leave to Mr Minus, as a director of ABCD Corporation, to represent it on the application: In the matter of Australasian Barrister Chambers Pty Limited [2019] NSWSC 1886 at [2].

10. [11]

    On 7 February 2020 at 9.30 am, Mr Dale sent an email to Mr Minus as follows:

11. [12]

    On 6 March 2020, Mr Dale sent Mr Minus a ‘follow up’ email, noting that he had appeared before Gleeson JA on 10 February 2020 and the Interlocutory Process had been was stood over to 9 March 2020 at 10.00 am. Mr Dale advised that he was instructed to proceed on 9 March 2020 to seek the relief in prayer 6 in the Interlocutory Process. The Interlocutory Process and affidavit in support were again attached to this email. I note that Mr Minus informed the Court that he received this email and its attachments. As it was sent to the same email address as the email of 7 February 2020, I infer that Mr Minus also received the earlier email and its attachments as well.

12. [13]

    Notwithstanding this, with respect, very clear evidence, Mr Minus again submitted:

13. [14]

    The difficulties I have with Mr Minus’ submissions are manifold. First, I am concerned why a barrister persists in submitting to the Court that they have never been served with any documents in relation to the application today in the face of clear documentary evidence to the contrary. Second, it is a mysterious prospect for a director to appear for a corporation without instructions, those instructions presumably emanating from himself. Whilst ABCD Corporation has two directors, Mr Minus is its authorised representative in these proceedings and can presumably readily consult with his fellow director, his wife.

14. [15]

    Third, it is apparent from the notices filed by Mr Minus with the Court, referred to at [7] and [10], that ABCD Corporation has consented to electronic service in accordance with UCPR rule 3.7 and the parties have been conducting themselves accordingly for some time. Even if the notices had not made this clear, consent may also be inferred from the manner in what a party has chosen to communicate over the course of a dispute or legal proceedings: In the matter of Outix Corporation Pty Limited [2019] NSWSC 1716 at [21]. Such consent may be inferred here given the evidence of Mr Dale as to his email communications with Mr Minus in these proceedings for more than four years.

15. [16]

    Fourth, even if a party has not consented to electronic service, a document may still have been served by email if it actually came to their attention by that means: Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542 at 544-5; (1996) 21 ACSR 440 at 443-4 per Young J. The principles concerning “effective informal service” were summarised by Palmer J in Woodgate v Garard Pty Ltd (2010) 78 ACSR 468; [2010] NSWSC 508 at [44]: (citations omitted)

16. [17]

    There is no doubt that the Interlocutory Process came to Mr Minus’ notice when it was served so long ago as he has since appeared at directions and substantive hearings at which the liquidator has sought to have the various prayers in that Interlocutory Process determined. The only question is whether it has come to Mr Minus’ attention that the liquidator now seeks to advance prayer 6 and I am satisfied that he was so notified on 7 February 2020, more than a month before the hearing today. I infer that the email came to his attention within days of it having been sent, as it was sent to the same email address as the ‘follow up’ email of 6 March 2020 which Mr Minus said came to his attention that day.

17. [18]

    I was thus satisfied that ABCD Corporation Pty Ltd had been served with notice of the Interlocutory Process in accordance with rule 2.7(2) of the Supreme Court (Corporations) Rules. Having so found, Mr Minus excused himself from further appearing in the matter, which proceeded in his absence.

Release of liquidator

1. [19]

   In support of the liquidator’s application for an order that he be released and the Company deregistered, affidavits sworn by Mr Sampson and Mr Dale were read. The liquidator also relied on a sample of judgments in this Court and the Federal Court of Australia which chronicle disputes which have bedevilled the liquidation of the Company, being:

2. [20]

   The affidavit evidence and judgments reveal that, in 2008, the Company was incorporated and entered into a Custodian Appointment Deed with ABCD Corporation. The Company became the registered proprietor of lots in a strata plan, being an office and storage space in barristers’ chambers in Sydney. The lots were held by the Company for the benefit of the beneficiaries of the Minasian Superannuation Fund. The trustee of the superannuation fund was ABCD Corporation.

3. [21]

   In 2012, a dispute arose between the Company and the body corporate of the strata plan in relation to unpaid strata levies. In 2014, the Company also became embroiled in litigation with the Australian Bar Association and the New South Wales Bar Association over the unauthorised use of trademarks and domain names. The associations commenced proceedings against the Company in the Federal Court of Australia.

4. [22]

   In September 2015, the body corporate issued a statutory demand to the Company on the basis of a judgment debt obtained in the Local Court of New South Wales for some $70,000. The body corporate commenced proceedings to appoint a liquidator to the Company. On 8 December 2015, Mr Sampson was appointed as liquidator. The next day, on 9 December 2015, a transfer of the lots in the strata plan from the Company to ABCD Corporation was registered. On 16 December 2015, Mr Sampson filed a submitting appearance save as to costs in the Federal Court proceedings.

5. [23]

   In September 2016, Mr Sampson filed an Interlocutory Process seeking to be appointed as receiver to the assets of the superannuation fund. Mr Minus appeared at the hearing before Brereton J and opposed the relief sought in his capacity as a creditor. His Honour appointed Mr Sampson as receiver of the lots but stayed the order for six weeks to allow Mr Minus and ABCD Corporation to apply to terminate the winding up of the Company. No such application was made and, on 6 December 2016, the stay on the orders made by Brereton J lapsed. In May 2017, the lots were sold and the body corporate was paid.

6. [24]

   In June 2017, Greenwood J gave judgment in the Federal Court proceedings finding that the Company had engaged in misleading and deceptive conduct and, in July 2017, made costs orders against the Company. In August 2017, Mr Sampson filed his Interlocutory Process, prayer 6 of which is now before the Court. In January 2018, the associations’ costs of the Federal Court proceedings were taxed such that the Company was obliged to pay some $195,000 to the Australian Bar Association and some $83,000 to New South War Bar Association.

7. [25]

   In June 2019, Brereton J determined Mr Sampson’s claim for remuneration for work done as receiver. On 21 August 2019, the Company’s creditors met. Mr Minus attended. Four creditors were admitted for voting purposes: the Australian Bar Association, New South Wales Bar Association, ABCD Corporation and Mr Minus. ABCD Corporation and Mr Minus voted against approving Mr Sampson’s remuneration and thus the resolution was not passed. Ultimately, after a two day hearing before Black J in December 2019, Mr Sampson’s remuneration was approved in full.

8. [26]

   Mr Sampson deposed that, as receiver, he had been involved in numerous litigious disputes with ABCD Corporation and Mr Minus. Mr Sampson described a difficult relationship with Mr Minus in the context of a multiplicity of proceedings which ABCD Corporation and other companies associated with him have brought against him as receiver.

9. [27]

   The liquidator’s senior counsel submitted that Mr Sampson has made several applications, or has had several applications made against him, over the course of the receivership and liquidation. All of these applications have involved Mr Minus in one form or another, either as barrister, director or personally, as an opponent. Whilst Mr Sampson deposes that he has made no default and is not aware of any claim, experience tells of a risk of a baseless complaint being made against Mr Sampson for what he has done whilst liquidator, including the sale of Mr Minus’ barristers’ chambers. It was submitted that Mr Sampson’s application for a release was not idly made and he was worthy of the protection of the Corporations Act. It was submitted that the mere fact of so many judgments tells a story itself about the prospect that there may be litigation commenced against Mr Sampson for no good reason.

10. [28]

    Section 480 of the Corporations Act provides:

11. [29]

    In the event that an order is made that a liquidator be released, then section 481(3) and (4) of the Corporations Act provides:

12. [30]

    When such an application might be appropriate was explained by Black J in Re RH Trevan Pty Ltd (in liq); Trevan Auto Service Pty Ltd (in liq); Trevan Car Sales Pty Ltd (in liq) [2013] NSWSC 1445 at [16]:

13. [31]

    His Honour also described the nature of an order under section 480 in In the matter of RR Impex Pty Ltd (in liquidation) [2013] NSWSC 1667 at [3]:

14. [32]

    A liquidator is required to prove, strictly, compliance with all of the prerequisites to a release: Re Autistic Therapy Society of Queensland Limited (in liq) (1981) 5 ACLR 658; (1981) 5 ACLR 658; Re Budget Floor Coverings Pty Ltd (in liq) (1982) 6 ACLR 657; (1982) 1 ACLC 312; Re Cardiff Coal Company (2014) 104 ACSR 135; [2014] NSWSC 1590 at [40] per Brereton J. Those requirements are set out in rule 7.5(3) of the Supreme Court (Corporations) Rules:

15. [33]

    Each of these matters are squarely addressed by Mr Sampson’s affidavit of 6 February 2020.

16. [34]

    In addition, rule 7.5(6) of the Supreme Court (Corporations) Rules provides:

17. [35]

    Here, the creditors of the Company are:

18. [36]

    The importance of adhering to the requirements for service was explained by McLellan J in Re Austral Family Homes Pty Ltd (in liq) (1992) 8 ACSR 322; (1992) 28 NSWLR 247 at 249:

19. [37]

    Examples of where the service requirements have been dispensed with include Re One.Tel, where Black J dispensed with the need to notify the 1,800 priority creditors and numerous unsecured creditors of One.Tel and instead permitted the special purpose liquidator to notify the committee of inspection only. His Honour considered that this was sufficient to satisfy the policy of the rule, “namely, that persons who might have reason to complain of the liquidator’s conduct should have an opportunity to disclose that complaint to the Court before he or she is released”: at [13]. In RR Impex, Black J dispensed with service on a creditor where the liquidator had endeavoured to serve a creditor at his last known address several times with no success: at [10]-[11].

20. [38]

    In these proceedings alone, which have been on foot since 2015, I note that there have been 40 hearings – either procedural or substantive – which have generated 22 judgments of which eight have been published. Of Mr Minus’ opposition to Mr Samson’s remuneration, contested in December 2019, Black J noted at [3]:

21. [39]

    That is, commercial sense does not seem to be a factor in Mr Minus’ litigious choices. It is perhaps telling that his Honour approved every dollar sought by Mr Sampson in remuneration, noting that the liquidation had “generated an extraordinary amount of litigation”: at [4]. Another instance of this appears to have occurred after the hearing before Black J, when ABCD Corporation applied to reopen its case and further cross-examine Mr Sampson after Mr Minus had indicated the day before that his cross-examination was complete, ABCD Corporation had closed its case and Mr Marshall SC had made closing submissions for the liquidator on that basis: at [15].

22. [40]

    It is readily apparent that Mr Sampson has been frequently challenged and sued by Mr Minus at, it would appear, every turn. There is every reason to think that this will not stop simply because Mr Sampson has completed his tasks as liquidator of the Company. This seems to me to be precisely the circumstance in which the Court may give a release, assuming that each of the requirements of section 480 of the Corporations Act and rule 7.5(3) of the Supreme Court (Corporations) Rules are fulfilled.

23. [41]

    The affidavit of Mr Sampson does address each of the requirements of rule 7.5(3). No evidence was served by any other party. The Australian Bar Association and New South Wales Bar Association have advised in writing that they neither consent nor oppose the application. ASIC does not wish to intervene in this application.

24. [42]

    There is no evidence that Mr Sampson has done other than performed his duties as a liquidator properly. I am satisfied by the evidence that this is a proper case for the release of the liquidator and an order that ASIC deregister the company. For these reasons I make the following order:

    1. (1)

       Pursuant to section 480 of the Corporations Act 2001 (Cth), order that David Henry Sampson be released and that the company, Australasian Barrister Chambers Pty Ltd, be deregistered.

25. [43]

    In the course of reviewing my ex tempore judgment, it became apparent that it is necessary to make a further order under rule 7.5(6) of the Supreme Court (Corporations) Rules 1999 (NSW) as each of the creditors and contributories have been served, but by email rather than prepaid post. Thus is it necessary for the Court to “otherwise order” under rule 7.5(6).

26. [44]

    As a consequence, I have circulated this judgment in draft to the parties and invited them to make any submission as to whether they oppose an order being made in Chambers dispensing with the requirement under rule 7.5(6) of the Supreme Court (Corporations) Rules 1999 (NSW) that the liquidator serve the material identified in that rule “by prepaid post”.