In the matter of Worldwide Speciality Property Services Ltd (in liq) [2017] NSWSC 1851

In the matter of Worldwide Speciality Property Services Ltd (in liq) [2017] NSWSC 1851

The plaintiff had an arguable claim that the one-third share of sale proceeds received from Graysonline belonged to him, so leave under Corporations Act s 500(2) was granted against the company in liquidation, subject only to a condition preventing enforcement against company property without further leave. Leave was not required to sue the first defendant personally because he was a voluntary liquidator, not a court-appointed officer of the Court; the legal basis for requiring leave to sue a liquidator applies to court-appointed liquidators as officers of the Court and does not extend in law to voluntary liquidators.

Jurisdiction
Australia
Judgment Date
03 November 2017
Procedural Posture
Equity Corporations List; Application for Leave Under Corporations Act S 500(2) And, to the Extent Necessary, Leave to Sue Liquidator Personally / Procedural Ruling on Originating Process Applications for Leave
Outcome
Leave granted to commence and continue proceedings against the second defendant under Corporations Act s 500(2), subject to a no-enforcement condition; the Court noted that leave was not required to proceed against the first defendant personally; defendants ordered to pay the plaintiff's costs of the leave...
Legal Topics
['creditors Voluntary Winding Up' 'leave to Commence and Continue Proceedings Against Company in Liquidation' 'whether Leave Required to Sue Voluntary Liquidator Personally' 'liquidator Personal Liability' 'trust Moneys' 'moneys Had and Received' 'costs']
['corporations Law' 'insolvency' 'equity'] ['creditors Voluntary Winding Up' 'leave to Commence and Continue Proceedings Against Company in Liquidation' 'whether Leave Required to Sue Voluntary Liquidator Personally' 'liquidator Personal Liability' 'trust Moneys' 'moneys Had and Received' 'costs']

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Procedural Posture

Equity Corporations List; Application for Leave Under Corporations Act S 500(2) And, to the Extent Necessary, Leave to Sue Liquidator Personally / Procedural Ruling on Originating Process Applications for Leave

Legal Issues

  1. 1 ['Whether leave under Corporations Act s 500(2) should be granted to commence and continue proceedings against the company in liquidation, and on what conditions.' 'Whether leave is required to sue a liquidator personally where the liquidator is appointed in a creditors voluntary winding up rather than by the Court.' 'If leave were required to sue the liquidator personally, whether it would be granted.' 'Whether proposed conditions requiring transfer to the District Court, pleadings, or deferral of a defence until after Federal Court examination should be imposed.']

Ratio Decidendi

The plaintiff had an arguable claim that the one-third share of sale proceeds received from Graysonline belonged to him, so leave under Corporations Act s 500(2) was granted against the company in liquidation, subject only to a condition preventing enforcement against company property without further leave. Leave was not required to sue the first defendant personally because he was a voluntary liquidator, not a court-appointed officer of the Court; the legal basis for requiring leave to sue a liquidator applies to court-appointed liquidators as officers of the Court and does not extend in law to voluntary liquidators.

Court Disposition

Leave granted to commence and continue proceedings against the second defendant under Corporations Act s 500(2), subject to a no-enforcement condition; the Court noted that leave was not required to proceed against the first defendant personally; defendants ordered to pay the plaintiff's costs of the leave...

Orders

  • ['Pursuant to Corporations Act s 500(2) the plaintiff have leave to commence and continue these proceedings against the second defendant, upon condition that any judgment recovered not be enforced against the property of the second defendant company without further leave of the Court.' "The defendants pay the...