Christianos v Aloridge Pty Ltd

This case involved an application for leave to appeal from interlocutory orders made by Burchett J. in a winding up application. The applicants, including George Christianos, Maria Christianos, Nikola Vuckovic, Frederick Salkanovic, and Gembank Limited, sought to join additional claims to the winding up application against West Australian Gem Explorers Pty Limited (WAGE) and Aloridge Pty Limited, the first and second respondents. The applicants alleged that the directors of WAGE had breached their fiduciary duties to the company, and sought declarations and orders against the directors and Gembank. The respondents opposed the application, arguing that additional claims should not be joined with a winding up application and that the claims proposed to be made were barred by the rule in Foss v Harbottle.

The court had to decide whether leave to appeal should be granted and, if so, whether the appeal should succeed. The court noted that particular caution should be exercised when reviewing decisions pertaining to practice and procedure. However, the orders made by Burchett J. had an important substantive operation, vesting the causes of action in contention in a receiver, which had the potential to affect substantive rights. The court also noted that there were some adjectival aspects of the orders made which appeared to have considerable practical significance, such as the uncertainty as to the operation of an order appointing a receiver "until further order."

The court concluded that the circumstances of the present case did not justify departure from the settled rule that only the company, or its liquidator in the case of a liquidated company, could maintain an action for a wrong done to the company. The court held that, in the absence of opposition to the winding up of WAGE, it was reasonable to expect that a winding up order would soon be made, at which point the liquidator could consider whether WAGE should pursue the subject claims. The court allowed the appeal, set aside the order appointing the receiver, and remitted the matter to the primary judge for a further directions hearing, including the listing for hearing as soon as practicable of the application to wind up WAGE. The first respondent was ordered to pay the applicants' costs of the appeal, including the application for leave to appeal.