King v Yurisich [2006] FCA 1369

King v Yurisich [2006] FCA 1369

If leave to proceed against Lane Moller Partners was required, it should be granted because the appeal proceeding was all but complete, the remaining costs issue could not be resolved by the liquidators, requiring proof of debt would be inappropriate, and allowing the matter to proceed to finality was unlikely to distract or divert the liquidators from their task.

Jurisdiction
Australia
Judgment Date
19 October 2006
Procedural Posture
Application for Leave to Proceed Against a Company in Liquidation Pursuant to S 500(2) of the Corporations Act 2001 (cth) / Notice of Motion After Appeal Allowed, With Costs Issue Outstanding
Outcome
Leave granted to proceed against Lane Moller Partners Pty Limited trading as Lane Moller Partners (in liquidation), with costs of the motion to be costs in the appeal.
Legal Topics
['leave to Proceed Against Company in Liquidation' "creditors' Voluntary Winding Up" 'whether Leave Required in an Appeal' 'costs in Appeal' 'proof of Debt Procedure']
['corporations' 'insolvency' 'civil Procedure' 'appeals'] ['leave to Proceed Against Company in Liquidation' "creditors' Voluntary Winding Up" 'whether Leave Required in an Appeal' 'costs in Appeal' 'proof of Debt Procedure']

Case Brief

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Procedural Posture

Application for Leave to Proceed Against a Company in Liquidation Pursuant to S 500(2) of the Corporations Act 2001 (cth) / Notice of Motion After Appeal Allowed, With Costs Issue Outstanding

Legal Issues

  1. 1 ['Whether the appellants required leave under s 500(2) of the Corporations Act 2001 (Cth) to proceed against Lane Moller Partners Pty Limited in liquidation in the context of an appeal where costs remained unresolved.' 'If leave was required, whether it should be granted.']

Ratio Decidendi

If leave to proceed against Lane Moller Partners was required, it should be granted because the appeal proceeding was all but complete, the remaining costs issue could not be resolved by the liquidators, requiring proof of debt would be inappropriate, and allowing the matter to proceed to finality was unlikely to distract or divert the liquidators from their task.

Court Disposition

Leave granted to proceed against Lane Moller Partners Pty Limited trading as Lane Moller Partners (in liquidation), with costs of the motion to be costs in the appeal.

Orders

  • ['The appellants be given leave to proceed against Lane Moller Partners Pty Limited trading as Lane Moller Partners (ACN 063 008 908) (in liquidation), pursuant to s 500(2) of the Corporations Act 2001 (Cth).' 'Costs of the Notice of Motion dated 13 October 2006 be costs in the appeal.']