Evans v Mullumbimby News Pty Ltd [2008] NSWSC 240

Evans v Mullumbimby News Pty Ltd [2008] NSWSC 240

Leave under s 440D was not required for the plaintiffs to file the originating process so far as it sought a winding up order and appointment of a provisional liquidator, because s 440A specifically governs winding up proceedings during voluntary administration. However, the additional claims for access to documents, co-operation and restraint against the company were proceedings against the company within s 440D and could not be included without leave; the originating process could therefore be filed only in amended form limiting those claims to the second defendant.

Jurisdiction
Australia
Judgment Date
19 March 2008
Procedural Posture
Corporations Proceeding Concerning Proposed Winding Up of Company Under Voluntary Administration / Application for Leave to File Originating Process
Outcome
Leave to file originating process in amended form
Legal Topics
['voluntary Administration' 'winding Up Proceedings' 'leave Under S 440 D' 'provisional Liquidator' 'access to Company Documents']
['corporations Law' 'insolvency'] ['voluntary Administration' 'winding Up Proceedings' 'leave Under S 440 D' 'provisional Liquidator' 'access to Company Documents']

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Procedural Posture

Corporations Proceeding Concerning Proposed Winding Up of Company Under Voluntary Administration / Application for Leave to File Originating Process

Legal Issues

  1. 1 ['Whether leave under s 440D of the Corporations Act 2001 (Cth) was needed to file an originating process seeking a winding up order against a company under voluntary administration.' 'Whether the plaintiffs could include claims for access to documents, co-operation and interlocutory restraint against the company without leave under s 440D.']

Ratio Decidendi

Leave under s 440D was not required for the plaintiffs to file the originating process so far as it sought a winding up order and appointment of a provisional liquidator, because s 440A specifically governs winding up proceedings during voluntary administration. However, the additional claims for access to documents, co-operation and restraint against the company were proceedings against the company within s 440D and could not be included without leave; the originating process could therefore be filed only in amended form limiting those claims to the second defendant.

Court Disposition

Leave to file originating process in amended form

Orders

  • ['Leave granted to the plaintiffs to file an originating process in the form initialled and dated by the Court but modified so that in each of paras 3, 4 and 7 the words "first and second defendants" are replaced by the words "second defendant" and in paragraph 5 the word "defendants" is replaced by the words...