H2 Migration & Education Pty Ltd v Gu

In the case of H2 Migration & Education Pty Ltd v Gu, the plaintiff sought to commence legal proceedings against the defendant, raising issues under the Corporations Act 2001 (Cth). The dispute centered around the appropriate form of originating process required to commence the action. The plaintiff argued that their case fell under the Corporations Act and should be commenced by a writ, while the defendant contended that the Corporations Rules mandated the use of Form 2 supported by an affidavit. The matter was heard in the Supreme Court of Western Australia.

The court was tasked with determining the meaning of "proceeding... under the Corporations Act" in Rule 1.3(1)(a) of the Corporations Rules, and whether the plaintiff's claims necessitated the use of Form 2 as required by Rule 2.2(1)(a). The court considered the relevant rules and authorities, including the decision in Destec Pty Ltd v Mineral Resources Limited, where it was held that a proceeding is under the Corporations Act if the claims and relief sought are sourced wholly within the Act, but not excluded if other claims and relief are also sought.

After examining the rules and relevant authorities, the court found that the plaintiff's case required the use of Form 2 supported by an affidavit. The court concluded that the plaintiff's claims, while rooted in the Corporations Act, also involved other legal principles, thus falling within the scope of Rule 2.2(1)(a) of the Corporations Rules. Consequently, the court held that the plaintiff's writ was not the appropriate originating process and ordered the plaintiff to file a Form 2 supported by an affidavit within 28 days.

The court ordered the plaintiff to file a Form 2 supported by an affidavit within 28 days from the date of the judgment. Failure to comply with this order would result in the dismissal of the plaintiff's claim. The defendant was also ordered to pay the plaintiff's costs of the application.