Mitry v Wily & Anor [2010] NSWSC 84

Mitry v Wily & Anor [2010] NSWSC 84

Leave should be granted under s 471B of the Corporations Act to pursue a Cross Claim against a company in liquidation where the claim is arguable, overlaps factually and legally with the Defence, is ready for trial, the proof of debt process would be futile, and no delay or prejudice would result to the liquidation.

Source-derived case information.

Parties
Plaintiff: Richard Mitry; First Defendant: Andrew Hugh Jenner Wily; Second Defendant: Business Australia Capital Finance Pty Ltd
Jurisdiction
Australia
Judgment Date
15 February 2010
Procedural Posture
Application for Leave Under Corporations Act S 471 B / Interlocutory Application (leave to Pursue Cross Claim Against Company in Liquidation)
Outcome
Application allowed (leave granted)
Legal Topics
Leave to Proceed Against Company in Liquidation, Cross Claim Practice, S 471 B Corporations Act, Discretionary Factors for Leave
Corporations Law Insolvency Leave to Proceed Against Company in Liquidation Cross Claim Practice S 471 B Corporations Act Discretionary Factors for Leave

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 2 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Richard Mitry

Plaintiff

Andrew Hugh Jenner Wily

First Defendant

Business Australia Capital Finance Pty Ltd

Second Defendant

Procedural Posture

Application for Leave Under Corporations Act S 471 B / Interlocutory Application (leave to Pursue Cross Claim Against Company in Liquidation)

Legal Issues

  1. 1 Whether leave should be granted under s 471B of the Corporations Act to permit prosecution of a Cross Claim against a company in liquidation
  2. 2 Whether Cross Claim is futile or has arguable merit despite issues of admissibility of evidence

Ratio Decidendi

Leave should be granted under s 471B of the Corporations Act to pursue a Cross Claim against a company in liquidation where the claim is arguable, overlaps factually and legally with the Defence, is ready for trial, the proof of debt process would be futile, and no delay or prejudice would result to the liquidation.

Court Disposition

Application allowed (leave granted)

Orders

  • Leave granted nunc pro tunc to file and prosecute a Cross Claim in the District Court proceeding 3634 of 2008
  • Costs of the application for leave to be reserved pending the outcome of District Court proceedings