LAWLESS -v- MACKENDRICK [No 2] [2008] WASC 15
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 15 | |
| Case No: | CIV:1146/2006 | 6 DECEMBER 2007 | |
| Coram: | NEWNES J | 28/02/08 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Validity of writ extended Leave to proceed granted | ||
| B | |||
| PDF Version |
| Parties: | KEVIN GERARD LAWLESS ALASTAIR MACKENDRICK PAMELA ALISON GABRIELS CHRISTOPHER DEREK BLAKE THE KING AND I PTY LTD (ACN 060 968 809) WATERDALE ENTERPRISES PTY LTD (ACN 063 567 519) PHILLIP JOHN MULCAHY BANK OF WESTERN AUSTRALIA LTD (ACN 050 494 454) |
Catchwords: | Practice and procedure Application to extend validity of writ Order 7 r 1(2) Relevant principles Turns on own facts Corporations Application for leave to proceed against company in liquidation and subject to deed of company arrangement Corporations Act 2001 (Cth), s 444E(3), s 471B Relevant principles Whether plaintiff's claim extinguished by deed of company arrangement Turns on own facts |
Legislation: | Corporations Act 2001 (Cth), s 444E(3), s 471B Rules of the Supreme Court 1971 (WA), O 7 r 2(1) |
Case References: | Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561 Brash Holdings Ltd v Katile Pty Ltd [1996] 1 VR 24 Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566 Re AJ Benjamin Ltd [1969] 2 NSWR 374 Re Coastal Constructions Pty Ltd (1994) 13 ACSR 329 Re Gordon Grant & Grant Pty Ltd (1982) 1 ACLC 196 Re Gordon Grant & Grant Pty Ltd [1983] 2 Qd R 314 Re Sydney Formworks Pty Ltd [1965] NSWR 646 Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550 Van Leer Australia Pty Ltd v Palace Shipping KK (1980) 180 CLR 337 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ALASTAIR MACKENDRICK
PAMELA ALISON GABRIELS
First Defendants
CHRISTOPHER DEREK BLAKE
Second Defendant
THE KING AND I PTY LTD (ACN 060 968 809)
Third Defendant
WATERDALE ENTERPRISES PTY LTD (ACN 063 567 519)
Fourth Defendant
PHILLIP JOHN MULCAHY
Fifth Defendant
BANK OF WESTERN AUSTRALIA LTD (ACN 050 494 454)
Sixth Defendant
Catchwords:
Practice and procedure - Application to extend validity of writ - Order 7 r 1(2) - Relevant principles - Turns on own facts
Corporations - Application for leave to proceed against company in liquidation and subject to deed of company arrangement - Corporations Act 2001 (Cth), s 444E(3), s 471B - Relevant principles - Whether plaintiff's claim extinguished by deed of company arrangement - Turns on own facts
Legislation:
Corporations Act 2001 (Cth), s 444E(3), s 471B
Rules of the Supreme Court 1971 (WA), O 7 r 2(1)
Result:
Validity of writ extended
Leave to proceed granted
Category: B
(Page 3)
Representation:
Counsel:
Plaintiff : Mr…
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Details
- AGLC
- Lawless v MacKendrick [No 2] [2008] WASC 15
- Case
- [2008] WASC 15
- Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, the case of Lawless v MacKendrick [No 2] involved a plaintiff, Lawless, seeking to extend the validity of a writ against a defendant, MacKendrick, who was associated with a company that had entered into a deed of company arrangement. The plaintiff's writ had lapsed, and they sought an extension of time to recommence proceedings against MacKendrick, who was now in liquidation. The legal issues before the court were whether the writ's validity could be extended and whether the plaintiff's claim was extinguished by the deed of company arrangement.
The court considered the principles established in relevant cases and statutory provisions under the Corporations Act 2001 (Cth). It was necessary to determine whether the plaintiff's claim was extinguished by the deed of company arrangement and whether the circumstances justified an extension of the writ's validity. The court examined the specific facts of the case, including the terms of the deed of company arrangement and the nature of the plaintiff's claim. The court concluded that the plaintiff's claim was not extinguished by the deed of company arrangement and that the circumstances warranted an extension of the writ's validity.
In extending the writ's validity and granting leave to proceed, the court acknowledged the plaintiff's right to pursue their claim against MacKendrick, who was subject to a deed of company arrangement and in liquidation. The court's decision was based on the specific facts of the case and the principles outlined in the legislation and case law. The final orders of the court were to extend the validity of the writ and to grant leave to proceed with the plaintiff's claim against MacKendrick.
The court considered the principles established in relevant cases and statutory provisions under the Corporations Act 2001 (Cth). It was necessary to determine whether the plaintiff's claim was extinguished by the deed of company arrangement and whether the circumstances justified an extension of the writ's validity. The court examined the specific facts of the case, including the terms of the deed of company arrangement and the nature of the plaintiff's claim. The court concluded that the plaintiff's claim was not extinguished by the deed of company arrangement and that the circumstances warranted an extension of the writ's validity.
In extending the writ's validity and granting leave to proceed, the court acknowledged the plaintiff's right to pursue their claim against MacKendrick, who was subject to a deed of company arrangement and in liquidation. The court's decision was based on the specific facts of the case and the principles outlined in the legislation and case law. The final orders of the court were to extend the validity of the writ and to grant leave to proceed with the plaintiff's claim against MacKendrick.
Orders
Orders of the court
Validity of writ extended
Leave to proceed granted
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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