Eighty Second Agenda Pty Ltd v Handberg

Eighty Second Agenda Pty Ltd brought an action against Handberg, the liquidator of a company, seeking damages for alleged breaches of director’s duties. The case was heard in the Supreme Court of New South Wales. The primary dispute centred on the timing and validity of claims being brought against the liquidator and whether the plaintiff had any real prospect of success in proving its case.

The legal issues before the court involved determining the appropriate test for granting leave to proceed against a liquidator and whether this test differs based on whether the liquidator is court-appointed or voluntary. The court also had to consider if the plaintiff had a real prospect of success in establishing its claims against the liquidator, referencing relevant authorities such as Aston v Heron, Australian Securities and Investment Commission v Edge, Sydlow Pty Ltd (in liq) v T G Kotselas Pty Ltd, and McDonald v Dare.

In addressing these issues, the court found that the test for granting leave to proceed against a liquidator does not differ significantly between court-appointed and voluntary liquidators. The court applied the test established in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd, emphasising that the plaintiff must demonstrate a real prospect of success. The Supreme Court (General Civil Procedure) Rules 2005 and the Civil Procedure Act 2010 were also considered in determining the plaintiff's entitlement to proceed. Ultimately, the court concluded that the plaintiff did not have a real prospect of success and dismissed the application for leave to proceed against the liquidator.