In Re Australian Property Holdings Limited (in liq) (recs & mgrs apptd) (No 2)  VSC 576 Robson J considered applications by the defendants to stay the proceedings, which was refused, and to file limited defences, which was granted.
Australian Property Custodian Holdings (“APCH”) commenced proceedings in the Supreme Court against seven of its former directors to recover $30 million that was paid out of its assets it held on trust as a fee to companies controlled by Mr Lewski . ASIC commenced action in the Federal Court against APCH and 5 of its directors who are also defendants in this proceeding alleging breaches of the Corporations Act (“the Act”).
APCH is the responsible entity of the Prime Retirement and Aged Care Property Trust, a managed investment scheme under the Act . In 2006 the constitution of the Prime Trust was amended by the board of APCH to provide for a payment of a listing fee to APCH if units of the Prime Trust were listed on the ASX , which they were in August 2007 and APCH received $33m out of the assets of the trust. The Supreme Court proceedings were commenced by the liquidator on 5 March 2012 in the name of APCH  and a statement of claim was filed and served against all defendants for compensation under sections 1317H and HA or 1325 of the Act as well as a claim for equitable compensation. ASIC commenced proceedings in the Federal Court on 21 August 2012 .
Both proceedings allege that APCH breached its statutory duties under the Act in amending the trust to the detriment of the unit holders  and both rely upon section 601FD .
STAY OF PROCEEDINGS
The Supreme Court has an inherent power to stay proceedings in the interests of justice  (which is the overriding consideration ). His Honour set out, at , the relevant principles regarding a stay found in McMahon v Gould as follows (absent citations):
(a) Prima facie a plaintiff is entitled to have his action Read the rest of this entry »