Hill v Esplanade Wollongong Pty Ltd ACN 141 133 708 (subject to a deed of company arrangement) [2018] NSWSC 478

Hill v Esplanade Wollongong Pty Ltd ACN 141 133 708 (subject to a deed of company arrangement) [2018] NSWSC 478

Given the seriousness and complexity of the plaintiffs’ claim, the overlap with claims against other defendants, the inadequacy of the proof of debt procedure for this claim, and absence of prejudice or delay, it is appropriate to grant the plaintiffs leave, nunc pro tunc, to proceed against the first defendant under s 444E(3) of the Corporations Act 2001 (Cth).

Parties
First Plaintiff: Stephen John Hill; Second Plaintiff: Deirdre Gai Hill; First Defendant: Esplanade Wollongong Pty Ltd ACN 141 133 708 (subject to deed of company arrangement); Second Defendant: Peter Anthony Taranto; Third Defendant: Alexander Pupovac; Fourth Defendant: Kerry Kyriakoudes; Fifth Defendant: Peter Bahlmann; Sixth Defendant: Anna Masi; Seventh Defendant: Hayley Maree Williams; Eighth Defendant: Thomas William Sherley; Ninth Defendant: Jeffrey Robert David
Jurisdiction
Australia
Judgment Date
20 April 2018
Procedural Posture
Civil / Interlocutory Application for Leave to Proceed Under S 444 E(3) Corporations Act
Outcome
Leave granted to plaintiffs to proceed against first defendant; costs in the proceedings; matter listed for further directions.
Legal Topics
Deeds of Company Arrangement, Leave to Proceed Against Company Under Deed, Proofs of Debt, Fraud, Misleading and Deceptive Conduct
Corporations Law Civil Procedure Deeds of Company Arrangement Leave to Proceed Against Company Under Deed Proofs of Debt Fraud Misleading and Deceptive Conduct

Case Brief

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Parties

Stephen John Hill

First Plaintiff

Deirdre Gai Hill

Second Plaintiff

Esplanade Wollongong Pty Ltd ACN 141 133 708 (subject to deed of company arrangement)

First Defendant

Peter Anthony Taranto

Second Defendant

Alexander Pupovac

Third Defendant

Kerry Kyriakoudes

Fourth Defendant

Peter Bahlmann

Fifth Defendant

Anna Masi

Sixth Defendant

Hayley Maree Williams

Seventh Defendant

Thomas William Sherley

Eighth Defendant

Jeffrey Robert David

Ninth Defendant

Procedural Posture

Civil / Interlocutory Application for Leave to Proceed Under S 444 E(3) Corporations Act

Legal Issues

  1. 1 Whether leave should be granted to plaintiffs under s 444E(3) of Corporations Act to proceed against a company subject to a deed of company arrangement
  2. 2 Whether such leave should be granted nunc pro tunc
  3. 3 Whether pursuit of the proceedings would be futile due to moratorium or barring provisions of the deed

Ratio Decidendi

Given the seriousness and complexity of the plaintiffs’ claim, the overlap with claims against other defendants, the inadequacy of the proof of debt procedure for this claim, and absence of prejudice or delay, it is appropriate to grant the plaintiffs leave, nunc pro tunc, to proceed against the first defendant under s 444E(3) of the Corporations Act 2001 (Cth).

Court Disposition

Leave granted to plaintiffs to proceed against first defendant; costs in the proceedings; matter listed for further directions.

Orders

  • Leave is granted to the plaintiffs nunc pro tunc pursuant to s 444E(3)(c) of the Corporations Act 2001 (Cth) to commence and proceed with this proceeding against the first defendant on the condition that the plaintiffs do not seek to enforce any judgment against the first defendant without further leave of the Court.
  • Order that the plaintiffs' costs of the motion be the plaintiffs' costs in the proceedings.