Kruger and Kruger & Ors

In *Kruger & Kruger and Ors* [2012] FamCA 760, the Family Court of Australia considered an application by a husband seeking to proceed with claims against the administrators of two companies and against St George Bank. The husband sought declarations of equitable proprietary interest in certain properties, limitations on his liability under loan facilities with the bank, and injunctions restraining the administrators and the bank from dealing with specific assets. The companies were in administration, and the husband's application required leave to proceed under section 440D(1)(b) of the *Corporations Act 2001* (Cth).

The primary legal issues before the Court were whether leave should be granted under section 440D(1)(b) of the *Corporations Act 2001* (Cth) for the husband to proceed with his applications against the administrators of Company 1 and Company 2, and by extension, against St George Bank in relation to property controlled by those companies. The husband also sought to establish an equitable proprietary interest in a property known as Residential Facility 1, based on previous court orders, and to limit his liability to St George Bank under loan facilities to 25 per cent.

Collier J determined that leave to proceed under section 440D(1)(b) of the *Corporations Act 2001* (Cth) was required for the husband's applications against the administrators, as no consent had been obtained from them. The Court noted that the husband's claims against the administrators, particularly regarding an alleged equitable proprietary interest in Residential Facility 1 and the assertion that Company 1 was a bare trustee for him, were complex and lacked clarity regarding the terms of any purported trust. Furthermore, the Court considered that the claims against St George Bank also necessitated leave under section 440D(1) of the *Corporations Act 2001* (Cth), as they related to property of companies under administration. Given that leave had not been sought or granted for these applications, the Court found it could not proceed with them.

The Court ordered the dismissal of the husband's Application in a Case, as amended. The parties were given twenty-one days to file any applications for costs.