Scott Russell Constructions Pty Limited (In Liq) v Queensland Building and Construction Commission [2019] FCA 1378

Scott Russell Constructions Pty Limited (In Liq) v Queensland Building and Construction Commission [2019] FCA 1378

Leave to bring proceedings in the name of the company in liquidation is refused because neither the impugned conduct occurred in the course of QBCC carrying on a business nor in trade or commerce, but rather in the course of regulatory functions; alleged causes of action are not arguably raised; liquidator had not consented and Mr Russell had not demonstrated ability to discharge financial responsibilities. Accordingly, the applications (for leave, and for substantive proceedings) are dismissed with costs.

Jurisdiction
Australia
Judgment Date
26 August 2019
Procedural Posture
Interlocutory Application / Judgment on Application for Leave to Bring Proceedings and Associated Strike Out/summary Judgment Applications
Outcome
Application for leave refused; proceedings dismissed with costs.
Legal Topics
['inherent Jurisdiction' 'derivative Action' 'leave to Bring Proceedings on Behalf of Company in Liquidation' 'unconscionable Conduct' 'regulatory Functions Versus Carrying on a Business' 'misfeasance in Public Office' 'application of Australian Consumer Law to State Authorities']
['corporations' 'consumer Protection'] ['inherent Jurisdiction' 'derivative Action' 'leave to Bring Proceedings on Behalf of Company in Liquidation' 'unconscionable Conduct' 'regulatory Functions Versus Carrying on a Business' 'misfeasance in Public Office' 'application of Australian Consumer Law to State Authorities']

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Procedural Posture

Interlocutory Application / Judgment on Application for Leave to Bring Proceedings and Associated Strike Out/summary Judgment Applications

Legal Issues

  1. 1 ['Whether the Federal Court has inherent jurisdiction to grant leave to a creditor to bring proceedings in the name of a company in liquidation' 'Whether the conduct of the Queensland Building and Construction Commission and its officers was in trade or commerce for the purposes of the Australian Consumer Law' 'Whether the impugned conduct was unconscionable under s 21, unduly harassing or coercive under s 50, or amounted to misfeasance in public office' 'Whether the Australian Consumer Law applies to QBCC as a State authority']

Ratio Decidendi

Leave to bring proceedings in the name of the company in liquidation is refused because neither the impugned conduct occurred in the course of QBCC carrying on a business nor in trade or commerce, but rather in the course of regulatory functions; alleged causes of action are not arguably raised; liquidator had not consented and Mr Russell had not demonstrated ability to discharge financial responsibilities. Accordingly, the applications (for leave, and for substantive proceedings) are dismissed with costs.

Court Disposition

Application for leave refused; proceedings dismissed with costs.

Orders

  • ['The interlocutory application filed by the second applicant seeking leave to bring the proceedings in the name of the company in liquidation (the first applicant) is dismissed.' 'The originating application is dismissed.' 'The second applicant pay the costs of the first and second respondents of and incidental to...