In the matter of Swan Services Pty Limited [2015] NSWSC 2099

In the matter of Swan Services Pty Limited [2015] NSWSC 2099

Approval was granted because the liquidation was likely to continue for a considerable time in any event, the relevant litigation was already on foot and well advanced, and entry into the funding agreement would not inappropriately or unnecessarily prolong or protract the liquidation. The Committee of Inspection's rejection did not require refusal, but its members and relevant creditors were given notice and liberty to apply to vary or set aside the orders.

Jurisdiction
Australia
Judgment Date
10 August 2015
Procedural Posture
Application by Liquidator for Court Approval Under (cth) Corporations Act 2001, S 477(2 B), to Enter a Litigation Funding Agreement / Ex Tempore Ruling on Originating Process; Approval Granted
Outcome
Liquidator given approval to enter into agreement with litigation funder on behalf of the second to eighth plaintiffs, with confidentiality, notice, costs, and liberty to apply orders.
Legal Topics
['winding Up' "liquidators' Powers" 'litigation Funding' 'court Approval Under S 477(2 B)' 'committee of Inspection']
['corporations' 'insolvency'] ['winding Up' "liquidators' Powers" 'litigation Funding' 'court Approval Under S 477(2 B)' 'committee of Inspection']

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Procedural Posture

Application by Liquidator for Court Approval Under (cth) Corporations Act 2001, S 477(2 B), to Enter a Litigation Funding Agreement / Ex Tempore Ruling on Originating Process; Approval Granted

Legal Issues

  1. 1 ['Whether the liquidator should be given approval under (CTH) Corporations Act 2001, s 477(2B), to enter into a funding agreement with a litigation funder on behalf of the second to eighth plaintiffs' 'Whether entering the funding agreement would unnecessarily and inappropriately prolong or protract the liquidation' 'Whether the unanimous rejection by the Committee of Inspection, without notice of the application to its members, should prevent approval']

Ratio Decidendi

Approval was granted because the liquidation was likely to continue for a considerable time in any event, the relevant litigation was already on foot and well advanced, and entry into the funding agreement would not inappropriately or unnecessarily prolong or protract the liquidation. The Committee of Inspection's rejection did not require refusal, but its members and relevant creditors were given notice and liberty to apply to vary or set aside the orders.

Court Disposition

Liquidator given approval to enter into agreement with litigation funder on behalf of the second to eighth plaintiffs, with confidentiality, notice, costs, and liberty to apply orders.

Orders

  • ['Upon the undertaking of Kirsten Pearl Farmer to pay the appropriate filing fees, leave was granted to the plaintiff to file an originating process in the form initialled by the Court, dated 10 August 2015 and placed with the papers.' 'The originating process was directed to be returnable instanter.' 'The first...