DJ Builders & Son Pty Ltd (in liq), in the matter of DJ Builders & Son Pty Ltd (in liq) v Queensland Building and Construction Commission [2019] FCA 2018

DJ Builders & Son Pty Ltd (in liq), in the matter of DJ Builders & Son Pty Ltd (in liq) v Queensland Building and Construction Commission [2019] FCA 2018

Forward Pack's proposed negligence claim was sufficiently arguable, having regard to the dealings between DJ Builders and the QBCC in relation to the Minimum Financial Requirements audit, and the proposed staged indemnity and security of $125,000, subject to appropriate orders and further staged security, was adequate to address the practicalities of protecting the company, liquidator and creditors. Leave was therefore justified.

Jurisdiction
Australia
Judgment Date
29 November 2019
Procedural Posture
Application by the Second Applicant for Leave Nunc Pro Tunc to Continue the Proceeding in the Name of the First Applicant Company in Liquidation / Federal Court Judgment on Application for Leave
Outcome
Application for leave nunc pro tunc granted in reasons; parties directed to submit draft orders reflecting the reasons.
Legal Topics
['leave Nunc Pro Tunc' 'company in Liquidation' 'implied Power of the Court' 'minimum Financial Requirements Audit' "builder's Licence Suspension" 'security for Costs and Indemnity' 'public Authority Duty of Care' 'pure Economic Loss']
['practice and Procedure' 'corporations and Corporate Insolvency' 'negligence' 'contract'] ['leave Nunc Pro Tunc' 'company in Liquidation' 'implied Power of the Court' 'minimum Financial Requirements Audit' "builder's Licence Suspension" 'security for Costs and Indemnity' 'public Authority Duty of Care' 'pure Economic Loss']

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Procedural Posture

Application by the Second Applicant for Leave Nunc Pro Tunc to Continue the Proceeding in the Name of the First Applicant Company in Liquidation / Federal Court Judgment on Application for Leave

Legal Issues

  1. 1 ['Whether Forward Pack Pty Limited should be granted leave nunc pro tunc to continue the proceeding in the name of DJ Builders & Son Pty Ltd (in liquidation).' 'Whether the proposed proceeding had sufficient prospects of success or was sufficiently arguable.' 'Whether the practicalities associated with the proceeding, including protection of the company, liquidator and creditors against adverse costs and expenses, had been addressed.']

Ratio Decidendi

Forward Pack's proposed negligence claim was sufficiently arguable, having regard to the dealings between DJ Builders and the QBCC in relation to the Minimum Financial Requirements audit, and the proposed staged indemnity and security of $125,000, subject to appropriate orders and further staged security, was adequate to address the practicalities of protecting the company, liquidator and creditors. Leave was therefore justified.

Court Disposition

Application for leave nunc pro tunc granted in reasons; parties directed to submit draft orders reflecting the reasons.

Orders

  • ['By close of business on 6 December 2019, the parties are to consult, prepare and submit to my chambers a set of draft orders to reflect the contents of these reasons.']