Coates Hire Operations Pty Ltd v McNaughton [2006] NSWSC 841

Coates Hire Operations Pty Ltd v McNaughton [2006] NSWSC 841

Leave under s.440J(1) of the Corporations Act can be granted retrospectively to permit the enforcement of a guarantee where the voluntary administration has ended, all relevant parties have had notice and opportunity to be heard, and no policy or procedural reason remains to withhold leave.

Jurisdiction
Australia
Judgment Date
17 August 2006
Procedural Posture
Application for Leave Under Corporations Act S.440 J / Determination of Application for Leave (including Retrospective Leave)
Outcome
Leave under s.440J(1) granted retrospectively; costs ordered on indemnity basis against the defendant.
Legal Topics
['voluntary Administration' 'enforcement of Guarantees' 'retrospective Leave' 'costs']
['corporations Law' 'insolvency'] ['voluntary Administration' 'enforcement of Guarantees' 'retrospective Leave' 'costs']

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Procedural Posture

Application for Leave Under Corporations Act S.440 J / Determination of Application for Leave (including Retrospective Leave)

Legal Issues

  1. 1 ["Whether leave should be granted under s.440J(1) of the Corporations Act to enforce a director's guarantee during or after voluntary administration" 'Whether leave can be granted retrospectively under s.440J(1)' 'Whether the conclusion of the administration removes the prohibition under s.440J']

Ratio Decidendi

Leave under s.440J(1) of the Corporations Act can be granted retrospectively to permit the enforcement of a guarantee where the voluntary administration has ended, all relevant parties have had notice and opportunity to be heard, and no policy or procedural reason remains to withhold leave.

Court Disposition

Leave under s.440J(1) granted retrospectively; costs ordered on indemnity basis against the defendant.

Orders

  • ['Leave is granted to the plaintiff to enforce the guarantee against the defendant under s.440J(1) of the Corporations Act 2001 (Cth), nunc pro tunc.' "The defendant is to pay the plaintiff's costs of the proceedings on an indemnity basis."]