HFPS Pty Limited (Trustee) v Tamaya Resources Limited (In Liq) (No 1) [2016] FCA 442

HFPS Pty Limited (Trustee) v Tamaya Resources Limited (In Liq) (No 1) [2016] FCA 442

Leave to proceed against Tamaya was granted because the plaintiffs had genuine pleaded claims raising a serious question to be tried, there was a real dispute, the relevant insurance policy was likely to provide some cover to Tamaya, the delay in seeking leave had not caused substantive prejudice or case management consequences, and the conduct relied on by the opposing defendants did not warrant refusal. However, leave was not granted nunc pro tunc because doing so was unnecessary and the Court considered that limitation arguments should be left intact; leave was instead made effective from 5 February 2015, the date the interlocutory application for leave was filed.

Jurisdiction
Australia
Judgment Date
28 April 2016
Procedural Posture
Representative Proceeding Under Pt IVA of the Federal Court of Australia Act 1976 (cth) Involving Corporations and Corporate Insolvency Claims / Judgment on the Plaintiffs' Interlocutory Application for Leave Under S 500(2) of the Corporations Act 2001 (cth) to Proceed Against Tamaya Resources Limited (in Liquidation)
Outcome
The plaintiffs were granted leave to proceed against Tamaya Resources Limited (In Liquidation) on terms, effective from 5 February 2015, but were not granted leave nunc pro tunc to commence the proceeding.
Legal Topics
['leave to Commence or Continue Proceedings Against Company in Liquidation' 'section 500(2) of the Corporations Act 2001 (cth)' 'nunc Pro Tunc Leave' 'insurance of Company in Liquidation' 'standing to Oppose Leave Application' 'privilege Waiver']
['corporations' 'corporate Insolvency' 'civil Procedure' 'representative Proceedings'] ['leave to Commence or Continue Proceedings Against Company in Liquidation' 'section 500(2) of the Corporations Act 2001 (cth)' 'nunc Pro Tunc Leave' 'insurance of Company in Liquidation' 'standing to Oppose Leave Application' 'privilege Waiver']

Case Brief

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Procedural Posture

Representative Proceeding Under Pt IVA of the Federal Court of Australia Act 1976 (cth) Involving Corporations and Corporate Insolvency Claims / Judgment on the Plaintiffs' Interlocutory Application for Leave Under S 500(2) of the Corporations Act 2001 (cth) to Proceed Against Tamaya Resources Limited (in Liquidation)

Legal Issues

  1. 1 ['Whether leave should be granted under s 500(2) of the Corporations Act 2001 (Cth) for the plaintiffs to proceed against Tamaya Resources Limited (In Liquidation).' 'Whether any leave should be granted nunc pro tunc or otherwise operate from an earlier date.' 'Whether delay and the conduct of the plaintiffs, their solicitor and litigation funder warranted refusal of leave.' 'Whether the Deloitte defendants had standing to oppose the leave application.' 'Whether privilege over internal communications had been waived by reliance on some of those communications.']

Ratio Decidendi

Leave to proceed against Tamaya was granted because the plaintiffs had genuine pleaded claims raising a serious question to be tried, there was a real dispute, the relevant insurance policy was likely to provide some cover to Tamaya, the delay in seeking leave had not caused substantive prejudice or case management consequences, and the conduct relied on by the opposing defendants did not warrant refusal. However, leave was not granted nunc pro tunc because doing so was unnecessary and the Court considered that limitation arguments should be left intact; leave was instead made effective from 5 February 2015, the date the interlocutory application for leave was filed.

Court Disposition

The plaintiffs were granted leave to proceed against Tamaya Resources Limited (In Liquidation) on terms, effective from 5 February 2015, but were not granted leave nunc pro tunc to commence the proceeding.

Orders

  • ['Upon condition that the plaintiffs will not seek to enforce any judgment which they may obtain against Tamaya Resources Limited (In Liquidation) (Tamaya), pursuant to s 500(2) of the Corporations Act 2001 (Cth), the plaintiffs be granted leave to proceed with this proceeding against Tamaya, such leave to operate...