Johnston v McGrath in their capacity as liquidators of HIH Insurance (in liq) & ors [2005] NSWSC 1114

Johnston v McGrath in their capacity as liquidators of HIH Insurance (in liq) & ors [2005] NSWSC 1114

The interlocutory application to vacate the hearing was dismissed because, absent compelling grounds, a plaintiff is entitled to have their case decided on the law as it presently stands and there is no sufficient reason to adjourn pending the outcome of the appeal in Sons of Gwalia.

Parties
Plaintiff: Brian Alexander Johnston; First Defendants: Anthony Gregory McGrath and Alexander Robert Macintosh in their capacity as liquidators of HIH Insurance (in liq); Second Defendant: HIH Insurance Limited (in liq)
Jurisdiction
Australia
Judgment Date
14 October 2005
Procedural Posture
Interlocutory Application / Application to Vacate Hearing
Outcome
application dismissed
Legal Topics
Adjournment, Shareholder Claims in Liquidation
Practice and Procedure Corporations Law Adjournment Shareholder Claims in Liquidation

Case Brief

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Parties

Brian Alexander Johnston

Plaintiff

Anthony Gregory McGrath and Alexander Robert Macintosh in their capacity as liquidators of HIH Insurance (in liq)

First Defendants

HIH Insurance Limited (in liq)

Second Defendant

Procedural Posture

Interlocutory Application / Application to Vacate Hearing

Legal Issues

  1. 1 Whether the trial should be adjourned pending the outcome of appeal in the Federal Court concerning shareholder claims under Corporations Act s 536A
  2. 2 Whether the plaintiff’s claim is subordinate to creditors’ claims by operation of Corporations Act s 536A

Ratio Decidendi

The interlocutory application to vacate the hearing was dismissed because, absent compelling grounds, a plaintiff is entitled to have their case decided on the law as it presently stands and there is no sufficient reason to adjourn pending the outcome of the appeal in Sons of Gwalia.

Court Disposition

application dismissed

Orders

  • The interlocutory process filed on 12 October 2005 is dismissed with costs.