Vautin v BY Winddown, Inc. (formerly Bertram Yachts) (No 3) [2018] FCA 375

Vautin v BY Winddown, Inc. (formerly Bertram Yachts) (No 3) [2018] FCA 375

Leave was granted because the proceedings against Eagle Yachts had already been tried and judgment was pending, the expenses of litigating the applicant's claim had effectively already been incurred, very little further expenditure or delay would be caused to the liquidators, and there was a real concern that requiring a proof of debt could lead to dispute and re-litigation; therefore the applicant showed good reason on the balance of convenience for the proceedings to continue.

Jurisdiction
Australia
Judgment Date
07 March 2018
Procedural Posture
Application for Leave to Continue Proceedings Against a Company in Creditors' Voluntary Winding Up Under S 500(2) of the Corporations Act 2001 (cth) / Application Heard After the Trial in Proceedings NSD 546 of 2016 Had Been Held and Judgment Was Pending
Outcome
Application granted; leave granted to continue proceedings against the second respondent; no order as to costs.
Legal Topics
['voluntary Winding Up' 'leave to Proceed Against Company in Liquidation' "creditors' Voluntary Winding Up" 'proof of Debt' 'balance of Convenience']
['corporations' 'admiralty and Maritime'] ['voluntary Winding Up' 'leave to Proceed Against Company in Liquidation' "creditors' Voluntary Winding Up" 'proof of Debt' 'balance of Convenience']

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Procedural Posture

Application for Leave to Continue Proceedings Against a Company in Creditors' Voluntary Winding Up Under S 500(2) of the Corporations Act 2001 (cth) / Application Heard After the Trial in Proceedings NSD 546 of 2016 Had Been Held and Judgment Was Pending

Legal Issues

  1. 1 ["Whether leave should be granted under s 500(2) of the Corporations Act 2001 (Cth) to continue proceedings against Eagle Yachts Pty Ltd after it entered creditors' voluntary winding up" 'Whether the balance of convenience favoured continuation of the court proceedings rather than requiring the applicant to lodge a proof of debt in the liquidation']

Ratio Decidendi

Leave was granted because the proceedings against Eagle Yachts had already been tried and judgment was pending, the expenses of litigating the applicant's claim had effectively already been incurred, very little further expenditure or delay would be caused to the liquidators, and there was a real concern that requiring a proof of debt could lead to dispute and re-litigation; therefore the applicant showed good reason on the balance of convenience for the proceedings to continue.

Court Disposition

Application granted; leave granted to continue proceedings against the second respondent; no order as to costs.

Orders

  • ['Pursuant to s 500(2) of the Corporations Act 2001, leave be granted to the applicant to continue proceedings number NSD 546 of 2016 against the second respondent.' 'There be no order as to costs in relation to this application.']