O.D. Transport (Australia) Pty Ltd (in liq) & Ors v O.D. Transport Pty Ltd & Ors [1997] FCA 1412

O.D. Transport (Australia) Pty Ltd (in liq) & Ors v O.D. Transport Pty Ltd & Ors [1997] FCA 1412

The first respondent required leave under s 500(2) to bring the cross-claim against the first applicant because the first applicant was in voluntary liquidation and the cross-claim was not merely a set-off. The prior consent directions order did not constitute leave under s 500(2), and if it could be so construed it would be recalled. Leave was refused because the first respondent filed no material showing that its proposed rectification claim had merit or would not cause the company in liquidation unnecessary unrecoverable expenditure.

Jurisdiction
Australia
Judgment Date
10 December 1997
Procedural Posture
Application Under S 500(2) of the Corporations Law for Leave to Commence or Proceed With a Cross Claim Against a Company in Liquidation / Interlocutory Oral Application
Outcome
Application dismissed without prejudice to the first respondent's right to make a further application on proper material; no order for costs.
Legal Topics
['leave to Proceed Against Company in Voluntary Winding Up' 'cross Claim Against Company in Liquidation' 'consent Orders Under O 35 R 10' 'rectification of Franchise Agreement' 'proof of Debt Procedure']
['corporations' 'practice and Procedure'] ['leave to Proceed Against Company in Voluntary Winding Up' 'cross Claim Against Company in Liquidation' 'consent Orders Under O 35 R 10' 'rectification of Franchise Agreement' 'proof of Debt Procedure']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application Under S 500(2) of the Corporations Law for Leave to Commence or Proceed With a Cross Claim Against a Company in Liquidation / Interlocutory Oral Application

Legal Issues

  1. 1 ['Whether the first respondent required leave under s 500(2) of the Corporations Law to proceed by cross-claim against the first applicant, a company in voluntary liquidation.' 'Whether consent orders made under O 35 r 10 requiring any cross-claim to be filed by a specified date constituted leave under s 500(2) of the Corporations Law.' 'Whether leave should be granted where the first respondent filed no material showing that its proposed rectification cross-claim had merit.']

Ratio Decidendi

The first respondent required leave under s 500(2) to bring the cross-claim against the first applicant because the first applicant was in voluntary liquidation and the cross-claim was not merely a set-off. The prior consent directions order did not constitute leave under s 500(2), and if it could be so construed it would be recalled. Leave was refused because the first respondent filed no material showing that its proposed rectification claim had merit or would not cause the company in liquidation unnecessary unrecoverable expenditure.

Court Disposition

Application dismissed without prejudice to the first respondent's right to make a further application on proper material; no order for costs.

Orders

  • ['The application for leave to commence or proceed with a cross-claim against the first applicant is dismissed.' 'No order for costs will be made on the application.']