Deangrove Pty Ltd (Rec & Mgrs Aptd) v Commonwealth Bank of Australia [2001] FCA 173

Deangrove Pty Ltd (Rec & Mgrs Aptd) v Commonwealth Bank of Australia [2001] FCA 173

Given the applicants' explanation for their earlier default, their conduct was not contumacious and the institution of the second proceedings did not amount to an abuse of process; directors may commence proceedings in the company’s name if suitable indemnity (and, if required, security) is provided, as the receivers declined to pursue the claim.

Jurisdiction
Australia
Judgment Date
06 March 2001
Procedural Posture
Motion / Interlocutory Application for Dismissal and Directions
Outcome
Further directions; proceedings stood over.
Legal Topics
['abuse of Process' 'commencement of Proceedings by Company in Receivership' "director's Authority in Litigation" 'security for Indemnity' 'self Executing Orders']
['corporations' 'practice and Procedure'] ['abuse of Process' 'commencement of Proceedings by Company in Receivership' "director's Authority in Litigation" 'security for Indemnity' 'self Executing Orders']

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Procedural Posture

Motion / Interlocutory Application for Dismissal and Directions

Legal Issues

  1. 1 ['Whether institution of second proceedings, after dismissal of earlier proceedings for non-compliance with self-executing order, constitutes an abuse of process.' 'Whether directors of a company in receivership have power and authority to commence proceedings in the company’s name without receiver consent.' 'Whether a satisfactory indemnity (and security for indemnity) is required for the company to proceed.']

Ratio Decidendi

Given the applicants' explanation for their earlier default, their conduct was not contumacious and the institution of the second proceedings did not amount to an abuse of process; directors may commence proceedings in the company’s name if suitable indemnity (and, if required, security) is provided, as the receivers declined to pursue the claim.

Court Disposition

Further directions; proceedings stood over.

Orders

  • ['The proceedings be listed for further directions on 29 March 2001.' 'If appropriate security is provided at the next hearing, the motion will be dismissed, with no order as to costs for the motion, save that Mr Jeans should pay the receivers’ costs of appearing.' 'If security is not provided, the Court will...