Re: ACTON ENGINEERING PTY LIMITED And: LAURIE CAMPBELL; ALCAM FOODS PTY LIMITED (in liquidation); PETER IVAN FELIX GEROFF and ROBERT JOHN FRED BURNS No. 3057 of 1991 FED No. 610 Corporations Law 9 ACLC 1466/6 ACSR 149/103 ALR 437 (1991) 31 FCR 1
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION Black C.J.(1), Davies(2) and Lockhart(3) JJ.
CATCHWORDS
Corporations Law - Jurisdiction of Federal Court of Australia - application under s. 471(2) Corporations Law for leave to commence proceedings against a company in liquidation - order for winding up made in the Supreme Court of Queensland under the Corporations Law - whether the Federal Court is "the Court" empowered by s. 471(2) to grant leave - purpose of s. 471(2) - power to transfer proceedings under s. 44 Corporations Act 1989 discussed - order under s. 20(1A) Federal Court of Australia Act 1976 that jurisdiction of the Court be exercised by a Full Court.
The applicant have leave to commence proceedings against the second respondent in respect of the causes of action described in the affidavits read in support of this motion.
Such leave does not extend to the taking of any step to enforce any judgment obtained in such proceedings against the property of the second respondent without the prior leave of this Court or the Supreme Court of Queensland.
The applicant shall not, without such prior leave, prove in respect of the whole or any part of any such judgment in the winding up of the second respondent.
Until Wednesday, 17 July next or further order, the second respondent by itself, its servants and agents, be restrained from parting with possession, dealing with, disposing of or encumbering any of the goods set out in schedule A to the application.
The application, the motion head today, a sealed copy of this order and all affidavits in support be served upon the respondents by a facsimile transmission or otherwise by 4.00 pm tomorrow, 12 July 1991.
The matter be remitted to a Judge of this Court for further hearing.
The proceedings be returnable for further hearing and directions by telephone directions to be given at 4.30 pm on Wednesday, 17 July next, before a Judge of this Court.
The costs of the motion are reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
I agree with the reasons given by Lockhart J. why this court has jurisdiction to give leave pursuant to s471(2)…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Acton Engineering Pty Ltd v Campbell [1991] FCA 610
Case
[1991] FCA 610
Decision Date
CaseChat Overview and Summary
Acton Engineering Pty Ltd sought leave to commence proceedings against Campbell, a company in liquidation, under section 471(2) of the Corporations Law. The application was brought before the Federal Court of Australia. The primary issue was whether the Federal Court had the jurisdiction to grant leave for the proceedings under section 471(2) of the Corporations Law, given that an order for winding up had already been made in the Supreme Court of Queensland. The court also needed to consider the purpose of section 471(2) and whether there was a provision to transfer the proceedings under section 44 of the Corporations Act 1989.
The court examined the language of section 471(2) of the Corporations Law and found that it did not specifically exclude the Federal Court from having the power to grant leave to commence proceedings. The court determined that the purpose of section 471(2) was to allow for the protection of creditors and the enforcement of rights against a company in liquidation. It also noted that the power to transfer proceedings under section 44 of the Corporations Act 1989 could be exercised to facilitate the proper administration of justice. As such, the court found that it did have the jurisdiction to grant leave under section 471(2). However, the court imposed conditions on the leave granted, including restrictions on enforcing any judgment against the company's property without prior leave and a restraint on the company from dealing with certain goods.
The court granted leave to Acton Engineering Pty Ltd to commence proceedings against Campbell. However, it imposed certain conditions on the leave, including restrictions on enforcing any judgment against the company's property and a restraint on the company from dealing with certain goods. The matter was remitted to a judge of the court for further hearing. The costs of the motion were reserved.
Orders
Orders of the court
The applicant have leave to commence proceedings against the second respondent in respect of the causes of action described in the affidavits read in support of this motion.
Such leave does not extend to the taking of any step to enforce any judgment obtained in such proceedings against the property of the second respondent without the prior leave of this Court or the Supreme Court of Queensland.
The applicant shall not, without such prior leave, prove in respect of the whole or any part of any such judgment in the winding up of the second respondent.
Until Wednesday, 17 July next or further order, the second respondent by itself, its servants and agents, be restrained from parting with possession, dealing with, disposing of or encumbering any of the goods set out in schedule A to the application.
The application, the motion head today, a sealed copy of this order and all affidavits in support be served upon the respondents by a facsimile transmission or otherwise by 4.00 pm tomorrow, 12 July 1991.
The matter be remitted to a Judge of this Court for further hearing.
The proceedings be returnable for further hearing and directions by telephone directions to be given at 4.30 pm on Wednesday, 17 July next, before a Judge of this Court.
The costs of the motion are reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.