The receiver who wasn’t there, or here either

It must surely delight a member of the judiciary when on the first day of a hearing it’s discovered that two affidavits upon which the defence hopes to rely are so beset with irregularity as to render them inadmissible.

On Tuesday NSW Supreme Court judge Scott Nixon SC turned up wigged and robed and ready to hear arguments in respect of who had rights over properties which until recently were controlled by ex-KPMG deal maker John Adgemis.

Lenders to the hirsute and over-leveraged Hemmes wannabee have taken to appointing administrators and receivers over various pubs and related assets in Adgemis’ Public Hospitality Group.

In respect of the Camelia Grove Hotel in the Sydney suburb of Alexandria however that process has been complicated by the presence of receivers for rival lender GEMI Investments taking possession of The Terrace, a property adjacent to the pub controlled by a related entity and comprising an indoor and outdoor eating area and beer garden, cold storage facilities and a bottle shop.

Until last week the receivers of The Terrace – Hall Chadwick’s Kathleen Vouris and Richard Albarran – had most visibly asserted their appointor’s rights by erecting a wire fence that prevented pub staff and patrons from accessing the Terrace.

This the court previously heard threatened to severely impact the pub’s ability to trade, an issue close to the heart of BDO’s Duncan Clubb and Andrew Sallway as administrators of the three Adgemis entities that together operate the pub and FTI Consulting’s Vaughan Strawbridge and Joe Hansel, who as the receivers of the property controlled by those entities are maintaining the pub operations.

The fence was removed in compliance with court orders made last week and the issue of conflicting rights was set down for hearing yesterday.

While Justice Nixon ultimately delivered an ex-tempore judgment in favour of Clubb and Sallway late in the afternoon the parties first had to deal with two affidavits counsel for Vouris and Albarran sought to rely on.

The first was an affidavit deposed to by GEMI director Justin Epstein.

The court heard that the affidavit had been provided to the administrators’ legal advisors at around 9:00am, their objections to it being admitted so late were fulsome and the judge agreed with them.

The second affidavit was deposed to by Vouris whom the court heard had sworn and witnessed by audio visual link because she was overseas.

The administrators’ counsel told the judge she had wanted to cross examine Vouris. Further, neither she nor her instructors had been advised by Vouris and Albarran’s solicitors that the affidavit had been deposed by AVL, something the rules require must be clearly marked.

This led to an adjournment so that Vouris and Albarran’s lawyer, Luke Owens of Ronayne Owens Lawyers could be called to give evidence as to why the affidavit lacked the required details.

Under questioning Owens said the failure to indicate that the affidavit had been deposed by AVL was an oversight but it was his answer to the final question about where he understood Vouris to be at the time he witnessed her signing the affidavit that surprised.

“Sydney” Owens replied.

Further reading:

Receivers remove fence amid contravention threat