Christianos v Aloridge Pty Ltd - [1995] FCA 639

PRACTICE AND PROCEDURE - application for leave to appeal from interlocutory orders - need for "particular caution" when deciding whether to grant leave in respect of decisions pertaining to practice and procedure - orders had potential to affect substantive rights

CORPORATIONS LAW - shareholder seeking to join additional claims to winding up application - alleged breach of duty owed to company - rule in Foss v Harbottle - company is proper plaintiff to sue for a wrong done to it - settled rule is for liquidator to pursue claims in the name of the company - whether circumstances warrant vesting such rights in receiver - departure from rule only where "exception of necessity" - remedies available where liquidator unwilling to bring claims

Corporations Law s.260(2)(c), s.460(1), s.461(k), ss.477(1) and (2)

Cases considered:

Foss v Harbottle (1843) 2 Hare 461; 67 ER 189
Hurley v BGH Nominees Pty. Ltd. (1982) 6 ACLR 791
Adam P. Brown Male Fashions Pty. Ltd. v Philip Morris Inc. (1981) 148 CLR 170
Re Will of Gilbert (1946) 46 SR (NSW) 318
Scarel Pty. Ltd. v City Loan & Credit Corporation Pty Ltd (1988) 17 FCR 344
Ferguson v Wallbridge [1935] 3 DLR 66
Fargro Ltd. v Godfroy [1986] 1 WLR 1134
Zempilas v J N Taylor Ltd (in liq) (No 6) (1991) 5 ACSR 28
Garden Mews-St Leonards Pty Ltd v Butler Pollnow Pty Ltd (1984) 9 ACLR 91
Pollnow v Garden Mews-St Leonards Pty Ltd (1984) 9 ACLR 82

GEORGE CHRISTIANOS & ORS. v. ALORIDGE PTY. LIMITED & ANOR.

No. G 3210 of 1993

BEAUMONT WHITLAM AND TAMBERLIN JJ.

SYDNEY

21 AUGUST 1995

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No. G 3210 of 1993
  )
GENERAL DIVISION                 )

APPLICATION FOR LEAVE TO APPEAL
FROM A SINGLE JUDGE OF THE COURT

BETWEEN:GEORGE CHRISTIANOS

First applicant

MARIA CHRISTIANOS

Second applicant

NIKOLA VUCKOVIC

Third applicant

FREDERICK SALKANOVIC

Fourth applicant

GEMBANK LIMITED

Fifth applicant

AND:ALORIDGE PTY LIMITED (Provisional Liquidator appointed)

First respondent

WEST AUSTRALIAN GEM EXPLORERS PTY LIMITED
(Provisional liquidator appointed)

Second respondent

CORAM: BEAUMONT, WHITLAM AND TAMBERLIN JJ.

PLACE: SYDNEY

DATE: 21 AUGUST 1995

MINUTES OF ORDER

THE COURT ORDERS:

Leave to appeal granted.

-2-

Appeal allowed.

Order 1 made at first instance on 6 April 1995 set aside.

The matter be remitted to Burchett J., or, if unavailable, to another Judge of the Court, for the purpose of conducting a directions hearing in the proceeding at a date to be fixed for the purpose of giving any directions that may then be necessary, including direction for the hearing as soon as practicable, of the application to wind up West Australian Gem Explorers Pty. Limited.

The first respondent pay the appellants' costs of the appeal, including the application for leave to appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES…

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.

Keep reading for free

Create a free CaseChat account to read Christianos v Aloridge Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1995] FCA 639
Decision Date: 21 AUGUST 1995

CaseChat Overview and Summary

Christianos and others sought leave to appeal from interlocutory orders made by Burchett J. in proceedings brought by Aloridge seeking to wind up West Australian Gem Explorers (WAGE). The primary Judge had made orders appointing a receiver to hold any rights of action that WAGE may have against certain directors and Gembank, and to bring proceedings in the name of WAGE. The primary Judge also ordered that the receiver be joined as a co-applicant in any such proceedings. The applicants contended that the primary Judge should not have made the orders complained of, since the company was the proper plaintiff, and the settled rule was for the liquidator to pursue claims in the name of the company, unless there was an exception of necessity. The Full Court held that the orders were interlocutory, and that leave to appeal should be granted because they had a dual aspect: from one point of view, the question was merely one of practice and procedure, but from another aspect, the orders made had an important substantive operation, since they had the potential to affect substantive rights in terms of the application of the rule in Foss v Harbottle. The Full Court held that, in principle, the circumstances of this case did not justify departure from the settled rule. The appeal was allowed, and the matter was remitted to the primary Judge for a further directions hearing.

Orders