William Kamper & Anor v Applied Soil Technology Pty Limited & Ors [2004] NSWSC 891

William Kamper & Anor v Applied Soil Technology Pty Limited & Ors [2004] NSWSC 891

Section 237 of the Corporations Act 2001 applies to a company under external administration because the substantive provisions of ss 237(1) and 237(2) can operate according to their terms notwithstanding external administration or winding up, and s 237(3) merely creates a rebuttable presumption that may not arise where directors have not made a relevant decision. On that basis, and for the reasons advanced for Shannongrove, leave to intervene was appropriate.

Jurisdiction
Australia
Judgment Date
22 September 2004
Procedural Posture
Commercial List Proceedings Concerning a Joint Venture; Notice of Motion for Leave Under Section 237 of the Corporations Act 2001 / Ex Tempore Judgment on Notices of Motion, Including the Live Section 237 Leave Application and Costs
Outcome
Section 237 was held applicable to a company under external administration; Shannongrove was granted leave to intervene; the fourth and fifth cross-defendants were ordered to pay part of Shannongrove's costs of the section 237 issue.
Legal Topics
['section 237 Corporations Act Leave' 'statutory Derivative Proceedings' 'company Under External Administration' 'deed of Company Arrangement' 'construction of Uniform National Legislation' 'costs of Contested Motion']
['corporations Law' 'civil Procedure' 'costs'] ['section 237 Corporations Act Leave' 'statutory Derivative Proceedings' 'company Under External Administration' 'deed of Company Arrangement' 'construction of Uniform National Legislation' 'costs of Contested Motion']

Case Brief

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Procedural Posture

Commercial List Proceedings Concerning a Joint Venture; Notice of Motion for Leave Under Section 237 of the Corporations Act 2001 / Ex Tempore Judgment on Notices of Motion, Including the Live Section 237 Leave Application and Costs

Legal Issues

  1. 1 ['Whether section 237 of the Corporations Act 2001 applies to a company under external administration.' 'Whether Shannongrove Pty Limited should be granted leave under section 237 to intervene in the cross-claim against the fourth, fifth and sixth cross-defendants.' "What costs order should be made in relation to Shannongrove's notice of motion insofar as it concerned the section 237 issue."]

Ratio Decidendi

Section 237 of the Corporations Act 2001 applies to a company under external administration because the substantive provisions of ss 237(1) and 237(2) can operate according to their terms notwithstanding external administration or winding up, and s 237(3) merely creates a rebuttable presumption that may not arise where directors have not made a relevant decision. On that basis, and for the reasons advanced for Shannongrove, leave to intervene was appropriate.

Court Disposition

Section 237 was held applicable to a company under external administration; Shannongrove was granted leave to intervene; the fourth and fifth cross-defendants were ordered to pay part of Shannongrove's costs of the section 237 issue.

Orders

  • ['Leave to intervene under section 237 of the Corporations Act was granted to Shannongrove Pty Limited.' 'The parties were to bring forward short minutes of order generally in line with the orders read out by Mr Ashhurst.' "The fourth and fifth cross-defendants were to pay 50 percent only of Shannongrove's costs of...