Niccol, in the matter of FLY365 Pty Ltd (in liq) [2020] FCA 1303

Niccol, in the matter of FLY365 Pty Ltd (in liq) [2020] FCA 1303

Approval under s 477(2B) and a direction under s 90-15 were warranted because the funding agreement had clear and ordinary terms, was entered into for proper purposes and for the benefit of creditors, enabled necessary examinations and investigations in an unfunded liquidation where directors had not fully cooperated, did not prejudice unsecured creditors by giving the funding creditors any uplift, and did not prolong the liquidation because the funded work had already occurred. Suppression was necessary only for material revealing potential claims and further investigations, because disclosure would give potential targets an undue advantage and prejudice the proper administration of...

Jurisdiction
Australia
Judgment Date
08 September 2020
Procedural Posture
Application by Liquidators for Approval to Enter Into a Funding Agreement, for Directions, and for Suppression Orders / Interlocutory Application
Outcome
Application granted in part; approval and direction made; limited suppression orders made.
Legal Topics
["liquidators' Powers" 'funding Agreement Approval' 'directions to Liquidators' 'suppression and Non Publication Orders' 'open Justice']
['corporations' 'corporate Insolvency' 'practice and Procedure'] ["liquidators' Powers" 'funding Agreement Approval' 'directions to Liquidators' 'suppression and Non Publication Orders' 'open Justice']

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 by Liquidators for Approval to Enter Into a Funding Agreement, for Directions, and for Suppression Orders / Interlocutory Application

Legal Issues

  1. 1 ['Whether approval should be granted under s 477(2B) of the Corporations Act 2001 (Cth) for the liquidators to enter into the funding agreement.' 'Whether the liquidators were justified under s 90-15 of the Insolvency Practice Schedule (Corporations) in entering into the funding agreement and should be authorised to carry its terms into effect.' 'Whether suppression orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) were necessary to prevent prejudice to the proper administration of justice.']

Ratio Decidendi

Approval under s 477(2B) and a direction under s 90-15 were warranted because the funding agreement had clear and ordinary terms, was entered into for proper purposes and for the benefit of creditors, enabled necessary examinations and investigations in an unfunded liquidation where directors had not fully cooperated, did not prejudice unsecured creditors by giving the funding creditors any uplift, and did not prolong the liquidation because the funded work had already occurred. Suppression was necessary only for material revealing potential claims and further investigations, because disclosure would give potential targets an undue advantage and prejudice the proper administration of...

Court Disposition

Application granted in part; approval and direction made; limited suppression orders made.

Orders

  • ['Ian Malcolm Niccol and Vincent Joseph Pirina in their capacities as joint and several liquidators of FLY365 Pty Ltd (In Liquidation) be named as plaintiffs in these proceedings in place of Nicarson Natkunarajah.' 'Pursuant to section 477(2B) of the Corporations Act 2001 (Cth), the Liquidators be approved to enter...