Aloridge Pty Ltd v West Australian Gem Explorers Pty Ltd

Aloridge Pty Ltd sought leave to amend an application to wind up West Australian Gem Explorers Pty Ltd. The amendment sought to add new claims against directors and a related company, alleging breaches of fiduciary duty and unjust enrichment. The central legal issue was whether a derivative claim could be added by amendment after a provisional liquidator had been appointed. The court considered whether the appointment of a provisional liquidator negated the fourth exception to the rule in Foss v Harbottle, and if so, whether the fifth exception might apply. Burchett J. held that the question of standing should not be determined at the interlocutory stage but rather at the hearing when all evidence is available. He distinguished between the powers of a liquidator and a provisional liquidator, holding that the latter's limited role did not preclude the applicant from pursuing the derivative claims. Burchett J. allowed the amendment, noting that the interests of justice would be better served by resolving all issues at the hearing. The court ordered Aloridge Pty Ltd to bring in minutes of orders reflecting these reasons.