BDO Corporate Finance (Qld) Ltd v Russell

The case of BDO Corporate Finance (Qld) Ltd v Russell involved a dispute regarding an application for an extension of time in which to appeal and a notice of appeal filed six years after the decision to be appealed. The respondent, BDO Corporate Finance, applied for orders to strike out the application and the notice of appeal on various grounds, including the contention that the former director, Mr Russell, had no standing to bring the appeal on behalf of the company in liquidation. The respondent argued that the application and notice of appeal were lengthy, convoluted, largely incomprehensible and/or irrelevant, and that it would be oppressive to require the respondent to prepare a response. The respondent further contended that the application and notice of appeal were vexatious and an abuse of process, and that the notice of appeal should be struck out for a failure to state briefly and specifically the grounds of appeal.

The court was required to decide whether the application and notice of appeal should be struck out as vexatious and an abuse of process and whether the notice of appeal should be struck out for a failure to comply with the requirement to state briefly and specifically the grounds of appeal. The court was also required to decide whether Mr Russell had standing to bring the appeal on behalf of the company in liquidation and whether leave to bring an appeal in the name of the company should be granted under the Corporations Act and the inherent power of the Court.

The court found that the application and notice of appeal were lengthy, convoluted and largely incomprehensible, and that it would be oppressive to require the respondent to prepare a response. The court found that the application and notice of appeal were vexatious and an abuse of process and that the notice of appeal should be struck out for a failure to state briefly and specifically the grounds of appeal. The court also found that Mr Russell had no standing to bring the appeal on behalf of the company in liquidation and that leave to bring an appeal in the name of the company should not be granted under the Corporations Act or the inherent power of the Court. The court therefore made orders striking out the notice of appeal filed on 31 October 2018 and the application filed on 30 October 2018. The court also made orders that if the parties did not agree upon an order as to costs, each party was at liberty to file an outline of submissions as to costs, not exceeding three pages, such outline to be filed and served on the other party no later than 4 pm on 15 March 2019.