The NSW Supreme Court didn’t deliver the Christmas present one Sydney insolvency practitioner wanted late last year, although declining to impose an adverse costs order could be construed as such.
“There is also no evidentiary basis for the Court to make orders only with future effect, so as to immunise Mr Ball, in advance, from any claims against him.” Justice Ashley Black.
In a secondary judgment handed down on December 23, Justice Ashley Black declined to make an order for costs against Mackay Goodwin’s Mitchell Ball, despite the court agreeing that an order should be made removing Ball as receiver to the assets of the 1derful Group of Companies.
Further, as explained In the matter of 1derful Pty Limited (No 2) [2024] NSWSC 1670 the judge said Ball’s appointment should be set aside ab initio, in contrast to Ball’s argument that any order for his removal should be prospective only.
“I do not accept that an order removing Mr Ball as receiver should only be made prospectively, from the date of judgment, where that would entrench Fletch’s (Fletch Capital) wrongdoing in respect of the appointment of the receiver by allowing Mr Ball to seek his remuneration and costs against the 1derful Companies, the victims of the wrongdoing, rather than against Mr Seymour or Fletch who appointed him as receiver,” the judge said.
“It is not necessary for the Plaintiffs to rely on s 418A of the Corporations Act in order to remove Mr Ball as a receiver on that basis; where the Court has power to make appropriate orders consequent on the contraventions of the ASIC Act or ACL by Mr (Craig) Seymour; and where Mr Ball did not lead evidence in respect of orders to support any claim that power should not be exercised.
There is also no evidentiary basis for the Court to make orders only with future effect, so as to immunise Mr Ball, in advance, from any claims against him.
“His conduct was not the subject of positive or adverse findings in the proceedings and he may be properly left to defend any such claim on its merits, or to seek relief from liability in it if he can establish the evidentiary basis for such relief. I will therefore order that the appointment of Mr Ball as receiver to the assets of the 1derful Companies be set aside ab initio,” the judge concluded.
Ever the optimist, Ball sought an order that the plaintiffs pay his costs of responding to a claim for damages that the plaintiffs subsequently abandoned.
The judge however was having none of that, saying that while there were no adverse findings made against Ball, nor did the proceedings conjure anything that the court would categorise as positive.
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