In the matter of Reed Constructions Australia Pty Ltd (in liquidation) [2015] NSWSC 2033

In the matter of Reed Constructions Australia Pty Ltd (in liquidation) [2015] NSWSC 2033

Leave to commence proceedings against a company in liquidation under s 471B of the Corporations Act 2001 (Cth) should be granted where a prima facie case exists, the proceedings are required to protect the plaintiff's position regarding an imminent expiry of a limitation period, and the defendant company is insured against the relevant liability such that creditors are unlikely to be prejudiced.

Parties
Plaintiff: Vicinity Centres PM Pty Ltd (formerly known as Colonial First State Property Management Pty Ltd); Plaintiff: CC No 1 Pty Limited (as trustee of the CC No 1 Trust); Plaintiff: CC No 2 Pty Limited (as trustee of the CC No 2 Trust); Defendant: Reed Constructions Australia Pty Limited (in liquidation)
Jurisdiction
Australia
Judgment Date
27 November 2015
Procedural Posture
Application for Leave to Bring Proceedings in Winding Up / Ex Tempore Judgment on Application for Leave to Commence Proceedings
Outcome
Leave granted to commence proceedings against the defendant company in liquidation; orders made in accordance with the short minutes of order initialled by Black J.
Legal Topics
Winding Up, Leave to Commence Proceedings Against Company in Liquidation, Limitation Period, Insurance and Subrogation
Corporations Law Equity Winding Up Leave to Commence Proceedings Against Company in Liquidation Limitation Period Insurance and Subrogation

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Parties

Vicinity Centres PM Pty Ltd (formerly known as Colonial First State Property Management Pty Ltd)

Plaintiff

CC No 1 Pty Limited (as trustee of the CC No 1 Trust)

Plaintiff

CC No 2 Pty Limited (as trustee of the CC No 2 Trust)

Plaintiff

Reed Constructions Australia Pty Limited (in liquidation)

Defendant

Procedural Posture

Application for Leave to Bring Proceedings in Winding Up / Ex Tempore Judgment on Application for Leave to Commence Proceedings

Legal Issues

  1. 1 Whether leave should be granted under s 471B of the Corporations Act 2001 (Cth) to commence proceedings against a company in liquidation.
  2. 2 Whether a prima facie case exists to support the grant of leave.
  3. 3 Whether the existence of insurance covering the relevant liability is a good reason to grant leave.

Ratio Decidendi

Leave to commence proceedings against a company in liquidation under s 471B of the Corporations Act 2001 (Cth) should be granted where a prima facie case exists, the proceedings are required to protect the plaintiff's position regarding an imminent expiry of a limitation period, and the defendant company is insured against the relevant liability such that creditors are unlikely to be prejudiced.

Court Disposition

Leave granted to commence proceedings against the defendant company in liquidation; orders made in accordance with the short minutes of order initialled by Black J.

Orders

  • Plaintiffs granted leave under s 471B of the Corporations Act 2001 (Cth) to commence proceedings against the Defendant in the Technology and Construction List.
  • Plaintiffs to serve the Amended Originating Process, including Annexures, on the liquidator to the Defendant by 4 pm on 30 November 2015, identifying amendments and their purpose.