In the matter of BBY Limited (recs and mgrs apptd) (in liq); In the matter of BBY Holdings Pty Ltd (recs and mgrs apptd) (in liq) [2019] NSWSC 352

In the matter of BBY Limited (recs and mgrs apptd) (in liq); In the matter of BBY Holdings Pty Ltd (recs and mgrs apptd) (in liq) [2019] NSWSC 352

Leave under s 500(2) and joinder were refused because the claims sought to be advanced by Mr Rosewall and GARF were either claims against entities not parties to the proceedings, claims that should first be determined through established trust asset, client money, or proof of debt processes, or claims insufficiently...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
08 February 2019
Procedural Posture
Corporations List Proceedings Involving Claims Under S 588 FF of the Corporations Act and an Interlocutory Process in the Nature of a Substantive Cross Claim / Interlocutory Application for Leave Under S 500(2) of the Corporations Act 2001 (cth) and Joinder of Additional Parties
Outcome
Interlocutory Process filed on 15 October 2018 by the First and Second Defendants dismissed.
Legal Topics
['leave to Proceed Against Company in Liquidation Under S 500(2) of the Corporations Act 2001 (cth)' 'joinder of Companies Not Presently Party to Proceedings' 'proof of Debt Process' 'client Money Claims' 'claims to Trust Assets' 'set Off in Part 5.7 B Proceedings']
['corporations' 'insolvency' 'civil Procedure'] ['leave to Proceed Against Company in Liquidation Under S 500(2) of the Corporations Act 2001 (cth)' 'joinder of Companies Not Presently Party to Proceedings' 'proof of Debt Process' 'client Money Claims' 'claims to Trust Assets' 'set Off in Part 5.7 B Proceedings']

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Procedural Posture

Corporations List Proceedings Involving Claims Under S 588 FF of the Corporations Act and an Interlocutory Process in the Nature of a Substantive Cross Claim / Interlocutory Application for Leave Under S 500(2) of the Corporations Act 2001 (cth) and Joinder of Additional Parties

Legal Issues

  1. 1 ['Whether Mr Rosewall and GARF should be granted leave under s 500(2) of the Corporations Act 2001 (Cth) to pursue claims in the interlocutory process.' 'Whether companies not presently parties, including BBY Nominees and Broker Services Australia Pty Ltd, should be joined to the proceedings.' "Whether claims to shares held by BBY Nominees should be litigated in these proceedings or pursued through the liquidators' claims process." "Whether a claim for $80,000 said to have been paid to BBYL's trust account should proceed outside the client money process or proof of debt process." 'Whether claims for moneys lent to BBYH and BBYL should proceed outside the proof of debt process.' 'Whether leave or joinder should be granted for claims concerning FEL convertible notes or alleged personal claims against the liquidators.' 'Whether any alleged set-off required determination on the interlocutory application.']

Ratio Decidendi

Leave under s 500(2) and joinder were refused because the claims sought to be advanced by Mr Rosewall and GARF were either claims against entities not parties to the proceedings, claims that should first be determined through established trust asset, client money, or proof of debt processes, or claims insufficiently connected with the liquidators' Part 5.7B proceedings. Allowing the interlocutory process to proceed would not promote the orderly conduct of the winding up or the just, quick and cheap resolution of the real issues in dispute, and would risk unnecessary litigation and costs.

Court Disposition

Interlocutory Process filed on 15 October 2018 by the First and Second Defendants dismissed.

Orders

  • ['Dismiss the Interlocutory Process filed on 15 October 2018 by the First and Second Defendants.' "The First and Second Defendants to pay the Liquidators' costs of the application, as agreed or as assessed."]