Wirrina Cove marina boaties claim for $706,000 in damages derailed by company liquidation
Boaties suing a former marina operator for $700,000 have received a major blow in their protracted quest for damages.
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Boaties suing a former marina operator for $706,000 have received a major blow in their protracted quest for damages after the company was placed in liquidation on the eve of a crucial court hearing.
The District Court was on Monday expected to deliver a final award for damages to 75 berth owners who sued New Wave Aerospace for misappropriation of lease fees paid for the maintenance and operation of the Marina St Vincent at Wirrina Cove.
But the company’s sole director, Stephen Lindsay Gordon Marks, last Friday placed his company into voluntary liquidation – triggering an immediate freeze on the legal claim.
The boaties must now lodge a proof of debt with the liquidator Hugh Martin or seek leave of the Supreme Court to reinstigate their legal claim.
District Court-appointed auditor Hugh McPharlin last month found Mr Marks’ company had overcharged boaties by $1.759m, including berth owners not included in the class action.
The court had previously heard that Mr Marks had “siphoned” marina fees into related companies.
District Court Judge Patrick O’Sullivan heard on Monday that the boaties would still pursue Mr Marks personally for their legal and court costs, which The Advertiser has reported previously are nearly $700,000.
If successful in securing a costs order against Mr Marks, it could trigger moves to personally bankrupt the businessman.
Barrister Alex Lazarevich, acting for the plaintiffs, said the claim for legal costs would involve a “pull together” of the court records and transcripts to date.
“We would be pointing to, amongst other things, the fact that the trial had been adjourned about four times and the issues in relation to (Mr Marks) making statements to the court that were patently untrue,” he said.
He said the matter was listed for trial in February 2018, June 2018 and October 2018 and March 2019 and “none of those trials went ahead and each occasion was the fault of Mr Marks”.
He said Mr Marks had made “outright lies to the court” which “had the effect of prolonging the costs of the matter and the time taken”.
Judge O’Sullivan listed the costs argument for September 18.