Australian Competition and Consumer Commission v Birubi Art Pty Ltd (No 2)

In the case of Australian Competition and Consumer Commission v Birubi Art Pty Ltd (No 2), the Australian Competition and Consumer Commission (ACCC) sought leave to continue proceedings against Birubi Art Pty Ltd, a company that had already entered voluntary liquidation. The ACCC had initiated proceedings against Birubi for alleged contraventions of the Australian Consumer Law (ACL), seeking various forms of relief, including pecuniary penalties. The company had submitted to the orders of the Court, except as to costs. The primary issue before the Court was whether to grant the ACCC leave to continue the proceedings against Birubi, a matter governed by subsection 500(2) of the Corporations Act 2001 (Cth). The Court considered the principles applicable to granting leave under this subsection, including the discretion of the Court, the historical purpose of the prohibition against proceedings against a company in liquidation, and the circumstances under which such leave might be appropriate.

The Court noted that the proceedings were at an advanced stage but were not yet complete, as questions regarding pecuniary penalties and other relief remained unresolved. The Court examined the factors relevant to granting leave, including the seriousness of the claims, the complexity of the issues, and the stage of the proceedings. The Court concluded that the circumstances warranted granting leave to the ACCC to continue the proceedings. This decision was influenced by the strong public interest in the enforcement of consumer protection laws and the ACCC's intention to seek pecuniary penalties against Birubi. The Court determined that Birubi's submission to the Court's orders, except as to costs, did not oppose the grant of leave.

In its decision, the Court granted leave to the ACCC to pursue the proceedings against Birubi under section 500 of the Corporations Act 2001 (Cth). The Court also ordered Birubi to pay the ACCC's costs up to and including the date of the initial declarations made on 7 November 2018. The costs of the motion to grant leave were reserved for further determination. This decision allows the ACCC to continue its pursuit of penalties and other relief against Birubi, ensuring that the public interest in enforcing consumer protection laws is upheld, despite the company's liquidation.