Border Island P/L (in liq), Re [2000] QSC 322

• Reporting Scrco(3~ Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J Application No 868 of 2000 In the matter of the Corporations Law and In the matter of BORDER ISLAND PTY LTD (IN LIQUIDATION) ACN 091 303 918 CAIRNS .. DATE 01/09/2000 JUDGMENT IFl1111r, The Law Courts, Gl'orgc Street, llrishanc, Q. 4000 I 1 Tclcphonl': (07) J247 4J<iO Fax: (07) J247 55J2 -- 1 of 3 -- 01092000 D.l T6/JFG M/T CNS607/2000 (Jones J) HIS HONOUR: This is an application by the Liquidators of Border Island Pty Ltd, against the director of the company, John Palasty, pursuant to section 483(1) of The Corporations Law, for him to deliver up to the Liquidators the instrument of title over the property on Double Island, Cairns. The Liquidators are hampered in their efforts to realise the property of the company by not having that instrument of title. Alternatively, they will be put to expense and suffer delay in their efforts if it is not produced. Various searches indicate that the company in liquidation is indeed the owner of the subject property and is therefore prima facie entitled to the instrument of title. Attempts by the Liquidators to ascertain the whereabouts of the instrument of title resulted in a telephone conversation being made to Mr Palasty on 17 July 2000. In response to questions about the instrument of title, he said that the deed was with his accountants Mr Bruce Coombes of Macquarie Partners at Castle Hill in Sydney. Inquiries of Mr Coombes resulted in the accountant saying he did not have possession of it. Further inquiries were made of the personal solicitors of Mr Palasty and they have not responded to the query. Section 483 subsection 1 provides, 11 A Court may require a person who is a contributory, trustee, receiver, banker, agent or officer of the company to pay, deliver, convey, surrender or transfer to the liquidator or provisional liquidator as soon as practicable or within a specified period, 2 JUDGMENT 10 30 40 50 60 -- 2 of 3 -- 01092000 D.l T6/JFG M/T CNS607/2000 (Jones J) any money, property or books in the person's hands to which the company is prima facie entitled." Mr Palasty is a director of the company and therefore is a person who is subject to this order being made. I am satisfied that the applicant in this case is the liquidator and that the instrument of title is property of the company. The basis upon which Mr Palasty can be made subject to the order is that the document is "in his hands." This term is not defined, but I am prepared to construe the section in more. formal terms as meaning within the person's possession or power. On the material before me Mr Palasty has indicated that he believed the instrument of title was under his power by being in the possession of his accountant. The fact that this is not so, still leaves the question of whether I am satisfied that it is within his possession or power, despite his inaccurately identifying its whereabouts. The Liquidator has duly served Mr Palasty with this application and the affidavits in support. He has not appeared in Court to respond to the application and in the absence of any other evidence indicating where the instrument of title might be, coupled with Mr Palasty's belief that it was within his power, I am prepared to make the order which is sought by the application. I will therefore make orders in terms of the draft initialled by me and placed with the papers. 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 3 --