Judgments

Decision Information

Decision Content

T-726-89
Percy Minnabarriet, Chief of the Cook's Ferry Band, on his own behalf and on behalf of all other members of the Cook's Ferry Band (except Reg Draney and Jim Billy) and Cook's Ferry Band (Applicants)
v.
Council of the Cook's Ferry Band (Respondent)
INDEXED AS: COOK'S FERRY BAND Y. COOK'S FERRY BAND (COUNCIL) (T.D.)
Trial Division, Reed J.—Vancouver, May 15; Ottawa, May 26, 1989.
Native peoples — Appointment of receiver-manager over Band assets sought as part of opposition to Band Council activities — Jurisdiction in Federal Court to appoint receiver- manager — Nature and obligations of Band Council — Con trol and management of assets not reserved exclusively to Band Council and Crown.
Federal Court jurisdiction — Trial Division — Jurisdiction in Federal Court under Federal Court Act s. 44 to appoint receiver-manager over Indian Band assets where Band Council control opposed — Control and management of assets not reserved exclusively to Band Council and Crown.
Appointment of a receiver-manager for all property, assets and undertakings of the Cook's Ferry Band was sought as part of an attempt to restrain the Band Council from engaging in certain activities including the appointing of elected councillors of the Band to paid staff positions. Because of jurisdictional constraints, a similar suit has been filed against other persons in the Supreme Court of British Columbia. The only issue herein is whether the Federal Court has jurisdiction to appoint a receiver-manager.
Held, such a remedy is not outside the jurisdiction of this Court.
The appointment of a receiver-manager is authorized by section 44 of the Federal Court Act. The word "receiver" used therein can encompass a receiver-manager. Section 44 clearly intended that the receiver appointed to preserve property should be given authority not only to receive assets but also to manage or administer them, when required. Sections 18 and 44 are to be read together and are not to be treated as completely separate and mutually exclusive remedies.
The argument that, given the absence of express statutory authority to that effect, there is no jurisdiction in any Court to remove jurisdiction over the assets of the Band from the Band
Council, is not well taken. Railway cases, on which counsel for the respondent relies in support of that argument, are not applicable in view of the peculiar nature of railway legislation.
Nor could the respondent's argument, that the monies in question were under the dual control of the Band Council and the Crown and that since the Crown had failed to intervene or take a position with respect to the litigation, the Court lacked jurisdiction, be accepted. Since the Crown was notified, its silence could be treated as implied consent. In any event, this had no effect on jurisdiction.
There is no reason in principle why a receiver-manager could not be appointed by this Court, if a section 18 remedy were granted, pending the outcome of the litigation which has been commenced in the British Columbia Supreme Court.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Cree-Naskapi (of Quebec) Act, S.C. 1984, c. 18, s. 45(1)(d)(iv).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18, 44.
Indian Act, R.S.C., 1985, c. I-5, ss. 2(1), 61, 64(1) (as am. by S.C. 1985, c. 27, s. 10), 66(1), 69, 81-87, 89 (as am. by S.C. 1988, c. 23, s. 12).
Indian Bands Revenue Moneys Regulation, C.R.C., c. 953.
Railway Act, R.S.C., 1985, c. R-3, ss. 94, 95, 110.
The Railway Companies Act, 1867, 30 & 31 Vict., c. 127 (U.K.), s. 4 (made perpetual by 38 & 39 Vict., c. 31 (U.K.)).
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Allan v. Manitoba & N.W. Ry. Co., Re Gray, No. 1 (1894), 10 Man. R. 106 (Q.B.); Gardner v. London, Chatham, and Dover Railway Company (No. l) (1866- 67), L.R. 2 Ch. App. 201; Bande d'Eastmain c. Gilpin, [1987] R.J.Q. 1637 (S.P.).
CONSIDERED:
R. v. Les Ustensiles de Cuisine Inoxydables Cook-o- Matic Inc./Cook-o-Matic Kitchenware Stainless Steel Inc. (1984), 53 C.B.R. (N.S.) 276 (F.C.T.D.); Whitebear Band Council v. Carpenters Prov. Council of Sask., [1982] 3 W.W.R. 554 (Sask. C.A.); Bear v. John Smith Indian Band Chief, [1983] 5 W.W.R. 21 (Sask. Q.B.).
REFERRED TO:
In re Manchester and Milford Railway Company (1880), 14 Ch. D. 645 (C.A.); Marshall v. South Staffordshire Tramways Company, [1895] 2 Ch. 36 (C.A.); Parker v. Camden London Borough Council, [1986] Ch. 162 (C.A.); In re Salisbury Railway and Market House Co.
Ltd., [1969] 1 Ch. 349 (Ch. D.); Sage v. The Shore Line Railway Co. (1901), 2 N.B. Eq. 321; Ritchie v. Central Ontario R.W. Co. (1904), 7 O.L.R. 727 (C.P.D.); Ladore v. Bennett, [1939] A.C. 468 (P.C.); Blackett v. Blackett (1871), 19 W.R. 559 (Ch.); Brenan v. Preston (1852), 2 De G. M. & G. 813; 42 E.R. 1090 (Ch.).
AUTHORS CITED
Coyne H. E. B. The Railway Law of Canada, Toronto: Canada Law Books Co. Ltd., 1947.
Kerr, W. W. Kerr on the law and practice as to receivers, 16th ed. by R. Walton, London: Sweet & Maxwell Limited, 1983.
The Compact Edition of the Oxford English Dictionary, Vol. II, Oxford: Oxford University Press, 1971, "receiver".
COUNSEL:
E. Jack Woodward and P. Hutchings for
applicants.
G. Anderson for respondent.
SOLICITORS:
Jack Woodward, Victoria, for applicants.
Harper, Grey, Easton and Company, Vancou- ver, for respondent.
The following are the reasons for order ren dered in English by
REED J.: The applicants filed an originating notice of motion, pursuant to section 18 of the Federal Court Act [R.S.C., 1985, c. F-7], seeking a writ of certiorari to quash certain decisions of the respondent Band Council and for an injunction restraining the Band Council and some of the members thereof from engaging in certain activi ties including the appointing of elected councillors of the Band to paid staff positions. Part of the relief sought, by the applicants, is the appointment of a receiver-manager of all property, assets and undertakings of the Band (except reserve or desig nated land within the meaning of the Indian Act [R.S.C., 1985, c. I-5].) The text of the motion is not clear but it is my understanding that the appointment of a receiver-manager is sought pend ing final determination of the section 18 applica tion in this Court and pending final determination of litigation which the applicants have commenced against certain members of the Council, as individuals, and against others who are not mem-
bers of the Band in the Supreme Court of British Columbia. These last were originally named as respondents to this action. Counsel for the appli cants was advised, however, that because of con straints on this Court's jurisdiction those individu als could not be sued in this Court and thus a suit has been filed against them in the British Columbia Supreme Court.
The motion as presently filed is open-ended and seeks the appointment of a receiver-manager with no time limitation. There is in the motion no reference to the appointment of a receiver-manag er being sought as an interim measure pending the final determination of litigation. No reference is made to the appointment being sought pending determination of either the section 18 application in this Court or the claim which has been com menced against the respondent and others in the Supreme Court of British Columbia. It is clear that the motion will have to be amended in this regard. It would be unusual to appoint a receiver- manager without some time limits or constraint. I should note that the issue of the duration of the appointment was not one which was put at issue by the parties nor did it form part of the argument before me.
The applicants' motion for a section 18 remedy came before Mr. Justice McNair on Thursday, April 27, 1989. He ordered that the issue as to whether or not this Court had jurisdiction to appoint a receiver-manager over the assets of a Band Council should be argued on May 15, 1989. Counsel for the respondent submitted a draft notice of motion, dated May 9, 1989, for this purpose. That notice of motion seeks an order "that the Federal Court of Canada has no jurisdic tion to appoint a receiver-manager over the opera tions of a Band Council elected pursuant to the Indian Act, R.S.C., 1985, c. I-5". Counsel for the applicants argues that the notice of motion is too broadly framed since what is sought is the appoint ment of a receiver-manager with respect to the assets of the respondent Band Council, not its entire operation. In my view the notice of motion is unnecessary and does not govern the hearing. The
hearing before this Court on May 15th, has its foundation in the order of Mr. Justice McNair issued April 27, 1989. That order requires the arguing of the preliminary issue of jurisdiction in relation to the applicants' originating notice of motion dated April 10, 1989. I do not think it is necessary for the respondent to file any notice of motion at all.
The respondent argues that this Court has no jurisdiction to appoint a receiver-manager in the circumstances of this case because: (1) section 44 of the Federal Court Act does not authorize the appointment of a receiver-manager; (2) an Indian Band council is a legislative body exercising dele gated federal authority and as such is not suscept ible to replacement by a receiver-manager; (3) the monies and assets in question are "of Her Majesty the Queen, in right of Canada and are not subject to control or management by any person other than the Band Council or Her Majesty".
Section 44 of the Federal Court Act provides:
44. In addition to any other relief that the Court may grant or award, a mandamus, injunction or order for specific performance may be granted or a receiver appointed by the Court in all cases in which it appears to the Court to be just or convenient to do so, and any such order may be made either unconditionally or upon such terms and conditions as the Court deems just. [Underlining added.]
Counsel for the respondent argues that section 44 authorizes the appointment of a receiver and not a receiver-manager. He referred to the distinc tion made between a receiver and a manager in Allan v. Manitoba & N.W. Ry. Co., Re Gray, No. 1 (1894), 10 Man. R. 106 (Q.B.). That case, of course, did not deal with the interpretation of the Federal Court Act.
Counsel for the applicants, in response, referred to the text Kerr on Receivers, (16th ed. 1983) at pages 5, 6, 13, 14 and 212. The situations in which a Court will appoint a receiver or a receiver- manager are discussed in that text. Counsel for the
applicants also referred to a decision given by my colleague Mr. Justice Joyal in R. v. Les Ustensiles de Cuisine Inoxydables Cook-o-Matic Inc./Cook- o-Matic Kitchenware Stainless Steel Inc. (1984), 53 C.B.R. (N.S.) 276 (F.C.T.D.). In that case a receiver pursuant to section 44 was appointed and that receiver was empowered to administer and to manage the business which was committed to the charge of the receiver.
I have no doubt that section 44 should not be as narrowly construed as counsel for the respondent contends. In the first place the word "receiver" as a matter of literal interpretation can encompass a receiver-manager. The two terms are not mutually exclusive. The definition of receiver found in The Compact Edition of the Oxford English Diction ary, 1971 [at page 2437], is "A person appointed by a court to administer the property of a bank rupt, or property which is the subject of litigation, pending the suit". The capacity to administer clearly encompasses the capacity to manage. Secondly, to the extent that section 44 was enacted to encompass the granting of orders to preserve property, either pending the outcome of litigation or pending an event subsequent to litigation, it must have been intended that a receiver appointed for that purpose could be given authority not only to receive assets but also to manage or administer them, when such is required by the circumstances of the case.
Counsel for the respondent argues that section 44 cannot be read together with section 18, so as to allow a receiver to be appointed pending a section 18 application, because this would make the refer ences to "mandamus" and "injunction" set out therein redundant. As I understand this argument, it is that if section 18 is to be read together with section 44, section 44 would become: "In addition to any mandamus or injunction pursuant to section 18 that the Court may grant or award, a man- damus, injunction or order .. . may be granted ... in all cases in which it appears to the Court to be just or convenient to do so". As a matter of statutory interpretation I do not find this argu ment convincing. Section 44 is clearly intended to be read together with the other sections of the Act, to the extent that the context of each of the other
sections may require. It would be reading far too much into the wording of that section to find therein the requirement that section 18 and section 44 are to be treated as completely separate and mutually exclusive remedies, as counsel argues.
With respect to the respondent's second argu ment, there is no dispute that a Band Council is a multi-functional body. In Whitebear Band Council v. Carpenters Prov. Council of Sask., [1982] 3 W.W.R. 554 (Sask. C.A.), Mr. Justice Cameron stated [at pages 560-561]:
In summary, an Indian band council is an elected public authority, dependent on Parliament for its existence, powers and responsibilities, whose essential function it is to exercise municipal and government power—delegated to it by Parlia- ment—in relation to the Indian reserve whose inhabitants have elected it; as such, it is to act from time to time as the agent of the minister and the representative of the band with respect to the administration and delivery of certain federal programs for the benefit of Indians on Indian reserves, and to perform an advisory, and in some cases a decisive, role in relation to the exercise by the minister of certain of his statutory authority relative to the reserve.
See also Bear v. John Smith Indian Band Chief, [1983] 5 W.W.R. 21 (Sask. Q.B.), especially at page 25:
In my opinion, the gist of what Cameron J.A. is saying in his analysis of the Indian Act is that with respect to certain aspects of its activities the band council acts as a servant or agent of the minister (Crown); on the other hand, the council also functions as the elected representative body of the members of the band and acts as the administrative body for the reserve and concerns itself with the day-to-day organization and main tenance of life on a reserve.
That being so counsel for the respondent argues that there is no jurisdiction in any Court to remove jurisdiction over the assets of the Band from the Band Council. He argues that this follows from the fact that there is no express statutory authority given to a Court to exercise such jurisdiction. The decision in Allan v. Manitoba & N.W. Ry. Co. (supra) is relied upon.
I do not think counsel for the respondent can gain support from the Allan case. That case dealt with a railway and it is well known that railway legislation, in general, contains specific statutory provision requiring a railway company to fulfil certain mandatory obligation. In addition railway legislation often requires that a railway company may not be wound up or may not dispose of its
undertaking without governmental approval.' A parallel can be found in contemporary legislation which prevents the closing of branch lines without specific government approval. In this context the Court of Chancery in Gardner v. London, Cha- tham, and Dover Railway Company (No. 1) (1866-67), L.R. 2 Ch. App. 201 held that a receiv er but not a receiver-manager could be appointed with respect to part of railway line. In coming to this decision Lord Cairns said, at pages 212 and 217:
Now, I apprehend that nothing is better settled than that this Court does not assume the management of a business or undertaking except with a view to the winding up and sale of the business or undertaking. The management is an interim management; its necessity and its justification spring out of the jurisdiction to liquidate and to sell; the business or undertaking is managed and continued in order that it may be sold as a going concern, and with the sale the management ends.
But in addition to the general principle that the Court of Chancery will not in any case assume the permanent manage ment of a business or undertaking, there is that peculiarity in the undertaking of a railway which would, in my opinion, make it improper for the Court of Chancery to assume the manage ment of it at all. When Parliament, acting for the public interest, authorizes the construction and maintenance of a railway, both as a highway for the public, and as a road on which the company may themselves become carriers of passen gers and goods, it confers powers and imposes duties and responsibilities of the largest and most important kind, and it confers and imposes them upon the company which Parliament has before it, and upon no other body of persons.
The living and going concern thus created by the Legislature must not, under a contract pledging it as security, be destroyed, broken upon, or annihilated. The tolls and sums of money ejusdem generis—that is to say, the earnings of the undertak- ing—must be made available to satisfy the mortgage; but, in my opinion, the mortgagees cannot, under their mortgages, or as mortgagees—by seizing, or calling on this Court to seize, the capital, or the lands, or the proceeds of sales of land, or the stock of the undertaking—either prevent its completion, or reduce it into its original elements when it has been completed.
There is no doubt this decision was based on two facts: (1) the Court assumed that the purpose for which a receiver-manager was being appointed and the only purpose for which one could be appointed was to dismantle the company as a going concern, to wind it up; (2) the railway legislation imposed
' See, for example, contemporary legislation such as sections 94, 95 and 110 of the Railway Act, R.S.C., 1985, c. R-3.
mandatory duties and obligations on the directors of the railway and these could not be delegated. For further explanation of the Gardner case, see In re Manchester and Milford Railway Company (1880), 14 Ch. D. 645 (C.A.); and Marshall v. South Staffordshire Tramways Company, [1895] 2 Ch. 36 (C.A.), at pages 51-55; Parker v. Camden London Borough Council, [1986] Ch. 162 (C.A.); In re Salisbury Railway and Market House Co. Ltd., [1969] 1 Ch. 349 (Ch. D.). Reference can also be made to legislation enacted in the United Kingdom, the year subsequent to the Gardner case, which specifically allowed for the appointment of receiver-managers for railway companies but excepted the rolling stock and plant of the company from being seized by execution judgment: The Railway Companies Act, 1867, 30 & 31 Vict., c. 127 (U.K.), s. 4 made perpetual by 38 & 39 Vict., c. 31 (U.K.).
It is the Gardner case which was relied on in Allan v. Manitoba and N.W. Ry. Co. In the Allan case the mortgagees of a portion of the railway petitioned for the appointment of a receiver- manager and for the foreclosure of the mortgage. The appointment of a receiver was granted but the appointment of a receiver-manager was refused. Whether this decision accurately reflected the state of the law in Canada at the time is unclear: see, H. E. B. Coyne, The Railway Law of Canada (1947), at page 146; Sage v. The Shore Line Railway Co. (1901), 2 N.B. Eq. 321; Ritchie v. Central Ontario R.W. Co. (1904), 7 O.L.R. 727 (C.P.D.).
In any event the reasons which underlie the decision in the Gardner case do not apply in this case. The applicants are not seeking the appoint ment of a receiver-manager in order to dissolve or wind up the Band Council. They are seeking the appointment of a receiver-manager because, in their view, the appointment is necessary in order to preserve the Band's assets. Secondly, there are no mandatory obligation imposed on a Band, similar to those imposed on railways or other kinds of public utilities. There are no obligations on the Band requiring it, for example to provide certain kinds of public services such as a transportation service from place A to place B. The provisions
relating to Band Councils (sections 81-87 of the Indian Act) are empowering and permissive, they do not oblige the Bands to undertake specific mandatory obligations. Thirdly, there are no provi sions in the Indian Act comparable to those in railway legislation which require that the assets be maintained. There is nothing which prohibits the dismantling, charging or sale of Band assets, except section 89 [as am. by S.C. 1988, c. 23, s. 12]:
89. (1) Subject to this Act, the real and personal property of an Indian or a band situation on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a Band.
The applicants in this case, being Indian, do not fall within the prohibition prescribed by the terms of section 89.
Lastly, a cursory review of the authorities relat ing to municipalities, bodies which are analogous to Band Councils, has not revealed any rule which states that receiver-managers cannot be appointed with respect to the assets of a municipality because of the nature of those entities. Municipalities, like Band counsel have a multifunctional nature i.e., exercise both administrative powers and delegated legislative powers. It may be that there are express legislative provisions to this effect but I could not find any general common law principle that municipal assets cannot be placed under a receiv- er-manager. What indeed usually happens as a matter of practice, when a municipality finds itself in financial difficulties, is that the provincial gov ernment moves in and takes control: see, for exam ple Ladore v. Bennett, [1939] A.C. 468 (P.C.).
Thus the Allan decision was decided on the assumption that its constitutive legislation intend ed that there be no dismantling of the undertaking of the railway company. It was decided in the context of legislation which required the railway company to fulfil certain positive mandatory obli gations. And, it was decided on the assumption that the receiver-manager who it was sought to appoint was being appointed to sell or wind up the particular assets of the company which were in question. I do not think that case speaks to the respondent's situation.
Counsel for the respondent also referred to Bande d'Eastmain c. Gilpin, [1987] R.J.Q. 1637 (S.P.). In that case a band council regulation establishing a curfew for children under 16 years of age was held to have been validly enacted pursuant to the Cree-Naskapi (of Quebec) Act, S.C. 1984, c. 18, subparagraph 45(1)(d)(iv). That case is not relevant to the present issue.
Counsel for the respondent's third argument is that the monies held by the Band Council are held under dual control: control by the Council and control by the Crown. Reference was made to subsection 64(1) [as am. by S.C. 1985, c. 27, s. 10] and section 61 of . the Indian Act. Subsections 64(1) provides:
64. (1) With the consent of the council of a band, the Minister may authorize and direct the expenditure of capital moneys of the band
(a) to distribute per capita to the members of the band an amount not exceeding fifty per cent of the capital moneys of the band derived from the sale of surrendered lands;
(b) to construct and maintain roads, bridges, ditches and water courses on the reserves or on surrendered lands;
(k) for any other purpose that in the opinion of the Minister is for the benefit of the band. [Underlining added.]
Section 61 provides:
611. (1) Indian moneys shall be expended only for the benefit of the Indians or bands for whose use and benefit in common the moneys are received or held, and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purposes for which Indian moneys are used or are to be used is for the use and benefit of the band.
(2) Interest upon Indian moneys held in the Consolidated Revenue Fund shall be allowed at a rate to be fixed from time to time by the Governor in Council. [Underlining added.]
As counsel for the applicants argues, subsection 64(1) cannot apply because there are no capital moneys involved. In so far as section 61 is con cerned, the definition of "Indian moneys" as set out in section 2(1) of the Indian Act is defined as "all moneys ... held by Her Majesty for the use and benefit of Indians or bands". Clearly the funds in question here are not held by Her Majesty. They are held by the Band. Thus section 61 is not relevant.
That leaves for consideration subsection 66(1) and section 69 of the Indian Act. Subsection 66(1) provides:
66. (1) With the consent of the council of a band, the Minister may authorize and direct the expenditure of revenue moneys for any purpose that in his opinion will promote the general progress and welfare of the band or any member of the band. [Underlining added.]
And section 69:
69. (1) The Governor in Council may by order permit a band to control, manage and expend in whole or in part its revenue moneys and may amend or revoke any such order.
(2) The Governor in Council may take regulations to give effect to subsection (1) and may declare therein the extent to which this Act and the Financial Administration Act shall not apply to a band to which an order made under subsection (1) applies. [Underlining added.]
There is no statutory provision granting the Band Council control over its revenue moneys as contemplated in section 69, see Indian Bands Revenue Moneys Regulation, C.R.C., c. 953. Counsel for the respondent's argument is that since the moneys in question are under dual con trol, the Court cannot appoint a receiver without the Crown's consent. It is argued that it is the Crown which has the responsibility to settle the dispute between the parties.
In the first place, counsel for the applicants does not concede that the moneys in question are under dual control. More importantly, however, it is clear that officials of the Crown have been notified of this litigation and no action has been taken by the Crown to involve itself in these proceedings. It is my understanding, from counsel's explanation, that the Crown was invited by counsel for the applicants to intervene. It is clear that the Crown, through its officials, has declined to do so; a letter to this effect was filed with the Court.
I do not think the respondent can rely on the failure of the Crown to intervene or to take a position with respect to this litigation as a reason for denying this Court jurisdiction. Indeed, it may very well be that the Crown's position of non- involvement, given the fact that notice of the litigation was given to it, should be treated as implied consent (if its consent is in any event necessary). In addition, while the alleged joint control may be reason for adding the Crown as a party or as an intervenor, either on application by
either party or by the Crown itself, I do not think that fact goes to the jurisdiction of this Court. It would be quite unjust to allow the respondent to rely on a lack of consent or involvement by the Crown, as a means of removing this litigation from the Court's jurisdiction. The applicants would thereby be left without a remedy.
For the reasons given it is my view that the Court has jurisdiction to appoint a receiver- manager either pending final determination of a section 18 application or consequent thereon, if such is necessary and appropriate in the circum stances. I make no determination as to whether such an order could be conditional upon determi nation of the litigation in the British Columbia Supreme Court. That issue was not directly before me. The notice of motion as presently drafted does not raise it. Mr. Justice McNair's order did not contemplate arguments on that point. Counsel for the applicants raised the issue in argument. He cited several cases which were decided before the unification of the Court of Equity and the Courts of Common Law in England in 1873: Blackett v. Blackett (1871), 19 W.R. 559 (Ch.); Brenan v. Preston (1852), 2 De G. M. & G. 813; 42 E.R. 1090 (Ch.). He argued that similarly today, where an applicant is faced with a split jurisdiction, as he is in this case, our Courts should co-operate to alleviate the difficulties the split jurisdiction visits upon the applicants.
The pre-1873 cases are not directly relevant, of course, because the Courts of Equity were acting in aid of the Courts of Common Law. These last could not grant equitable orders. In the present case, the British Columbia Supreme Court and the Federal Court are equally courts of equity. There fore there is no necessity for one to act in aid of the other. Each has its own equitable jurisidiction. At the same time, I see no reason why the policy of judicial co-operation which was behind the reason ing in the pre-1873 case should not apply here. I see no reason in principle why a receiver-manager could not be appointed by this Court, if a section 18 remedy were granted, pending outcome of the litigation which as been filed in the British Columbia Supreme Court. Presumably an appoint ment of a receiver-manager might be conditional on that event, in the same way it could be made
conditional on any other relevant event, providing such was, in the words of section 44 of the Federal Court Act, just and convenient.
For the reasons given the applicants' motion will not be struck out or amended to require deletion of the request for the appointment of a receiver- manager. Such a remedy is not outside the juris diction of this Court.
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