Ex parte McGrath; in the matter of Pan Pharmaceuticals Limited (in Liq) [2008] FCA 563

Ex parte McGrath; in the matter of Pan Pharmaceuticals Limited (in Liq) [2008] FCA 563

The proposed assignment was within the liquidators' power because, through ss 506(1)(b) and 477(2)(c) of the Corporations Act 2001 (Cth), they could cause Pan to dispose of property including a chose in action. The assignment was also justified: it was not clear that litigation against the Commonwealth would have no reasonable prospects or be vexatious or improper; the settlement avoided lengthy and expensive proceedings and possible adverse costs exposure; Mr Selim agreed to indemnify the liquidators for relevant costs; the Committee of Inspection approved the settlement; and the direction was just and beneficial to the liquidation. Confidentiality orders were warranted for the time...

Jurisdiction
Australia
Judgment Date
23 April 2008
Procedural Posture
Application for Directions in a Voluntary Winding Up Under Ss 511 and 479(3) of the Corporations Act 2001 (cth) / Ex Parte Application for Directions and Confidentiality Orders
Outcome
Direction made that the assignment was within power and proper; confidentiality and restricted access orders made; liberty to apply granted.
Legal Topics
["liquidators' Powers" 'assignment of Causes of Action' 'court Directions in Winding Up' 'confidentiality Orders' 'settlement Approval']
['corporations' 'insolvency' 'civil Procedure'] ["liquidators' Powers" 'assignment of Causes of Action' 'court Directions in Winding Up' 'confidentiality Orders' 'settlement Approval']

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Procedural Posture

Application for Directions in a Voluntary Winding Up Under Ss 511 and 479(3) of the Corporations Act 2001 (cth) / Ex Parte Application for Directions and Confidentiality Orders

Legal Issues

  1. 1 ['Whether the Court had power to give directions to the liquidators under ss 511 and 479(3) of the Corporations Act 2001 (Cth).' 'Whether the liquidators had power to cause Pan Pharmaceuticals Limited (in liquidation) to assign causes of action against the Commonwealth of Australia to Mr James Selim.' 'Whether the proposed assignment was justified and would not lead to vexatious or improper litigation.' 'Whether access to affidavit material, submissions and transcript should be restricted on confidentiality grounds.']

Ratio Decidendi

The proposed assignment was within the liquidators' power because, through ss 506(1)(b) and 477(2)(c) of the Corporations Act 2001 (Cth), they could cause Pan to dispose of property including a chose in action. The assignment was also justified: it was not clear that litigation against the Commonwealth would have no reasonable prospects or be vexatious or improper; the settlement avoided lengthy and expensive proceedings and possible adverse costs exposure; Mr Selim agreed to indemnify the liquidators for relevant costs; the Committee of Inspection approved the settlement; and the direction was just and beneficial to the liquidation. Confidentiality orders were warranted for the time...

Court Disposition

Direction made that the assignment was within power and proper; confidentiality and restricted access orders made; liberty to apply granted.

Orders

  • ['It is within power for the applicants to assign to Mr James Selim those causes of action against the Commonwealth of Australia as are identified in clause 10 of the Deed of Settlement dated 15 April 2008, and the applicants may properly do so.' "Access to the affidavit of Anthony Gregory McGrath sworn 21 April...