Findex Australia Pty Limited v McKay

FEDERAL COURT OF AUSTRALIA

Findex Australia Pty Limited v McKay [2019] FCA 335

File number:

VID 1026 of 2016

Judge:

STEWART J

Date of judgment:

11 March 2019

Date of publication of reasons:

14 March 2019

Catchwords:

CORPORATIONS – Order sought for leave under
s 500(2) of the Corporations Act 2001 (Cth) to proceed with a claim against company in voluntary liquidation – Whether leave should be granted to bring claim.

Legislation:

Corporations Act 2001 (Cth) s 500(2)

Cases cited:

Eopply New Energy Technology Co Ltd v EP Solar Pty Ltd [2013] FCA 356

Re DSHE Holdings Limited (recs and mgrs appointed) (in liq) [2018] NSWSC 82

Date of hearing:

11 March 2019

Registry:

Australian Capital Territory

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Commercial Contracts, Banking, Finance and Insurance

Category:

Catchwords

Number of paragraphs:

16

Counsel for the Applicants:

I Neil SC with N Furlan

Solicitor for the Applicants:

Harmers Workplace Lawyers

Counsel for the Respondents:

M A Karam with T C Arnold

Solicitor for the Respondents:

Just Dispute Resolution

ORDERS

VID 1026 of 2016

BETWEEN:

FINDEX AUSTRALIA PTY LIMITED (ACN 128 588 714)

First Applicant

CIVIC FINANCIAL PLANNING LIMITED (ACN 143 253 767)

Second Applicant

FINDEX SERVICES PTY LTD (ACN 128 588 705)

Third Applicant

FINANCIAL INDEX AUSTRALIA PTY LTD (ACN 094 287 037)
Fourth Applicant

AND:

DAVID KEITH MCKAY

First Respondent

VANDAMAN PTY LTD (ACN 103 917 773)

Second Respondent

JUDGE:	STEWART J
DATE OF ORDER:	11 MARCH 2019

THE COURT ORDERS THAT:

1.Pursuant to s 500(2) of the Corporations Act 2001 (Cth), that on the condition that the applicants not seek to enforce any judgment which they may obtain against Vandaman Pty Ltd (ACN 103 917 773) without leave of the Court, the applicants be granted leave to proceed with this proceeding against Vandaman Pty Ltd (ACN 103 917 773).

2.The leave ordered in order 1 operate and be effective from 19 February 2019.

3.The applicants’ costs of and incidental to this application be costs in the proceeding as between the applicants and Vandaman Pty Ltd (ACN 103 917 773).

4.Time for service of the application be abridged until 11 March 2019.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

STEWART J:

1. The applicants assert claims against the two respondents arising from alleged breaches of restraints of trade and misuse of confidential information by the first respondent, a natural person.  The first respondent is the former principal and sole director of the second respondent, a corporation.

2. The claims against the second respondent are asserted on the basis that, in collusion with the first respondent, and by the conduct of the first respondent, it breached the relevant restraint.  In the alternative, it is asserted that the second respondent is by the first respondent’s alleged conduct in breach of a contractual undertaking that the first respondent will not breach the restraint.

3. Following customary pre-trial processes including subpoenas for documents,…