Manny v David Lardner & Associates

Case [2018] ACTSC 159


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Manny v David Lardner & Associates

Citation:

[2018] ACTSC 159

Hearing Dates:

1 March, 26 April, 23 May 2018

DecisionDate:

31 May 2018

Before:

McWilliam AsJ

Decision:

Direct the plaintiff to serve a copy of this judgment on any creditors of the Companies and stand the matter over in order to give the plaintiff the opportunity to bring in a consent of liquidator and any undertaking for the funding of the costs of that liquidator.

Catchwords:

CORPORATIONS LAW – reinstatement – plaintiff seeking to reinstate three companies to bring proceedings – where companies formerly in liquidation – where no liquidator has consented to act upon reinstatement – whether reinstatement just

Legislation Cited:

Corporations Act 2001 (Cth) ss 482, 601AH

Court Procedures Rules 2006 (ACT) rr 30, 210, 223

Cases Cited:

AMP General Insurance Ltd v Victorian WorkCover Authority [2006] VSCA 236; 15 VR 175

Arnold World Trading Pty Ltd v ACN 133 427 335 Pty Ltd [2010] NSWSC 1369; 80 ACSR 670
Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; 259 CLR 1
Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316; 174 ALR 688; 34 ACSR 232
Casali v Crisp [2001] NSWSC 860; 165 FLR 79
Gematech Pty Ltd v Bardi Investments Pty Ltd [2008] NSWSC 196
GIS Electrical Pty Ltd v Melsom [2002] WASCA 302; 172 FLR 218; 43 ACSR 481
Hanna v Australian Securities and Investments Commission (No 2) [2011] FCA 1491; 286 ALR 706

In the matter of ERB International Pty Ltd (deregistered) [2014] NSWSC 200; 98 ACSR 124
In the matter of VG Sotir Investments Pty Ltd [2017] NSWSC 1381

JP Morgan Portfolio Services Ltd v Deloitte Touche Tohmatsu [2008] FCA 433; 167 FCR 212; 65 ACSR 636
Kendirjian v Lepore [2017] HCA 13; 259 CLR 275
Leveraged Capital Pty Ltd (in liq) v Modena Imports Pty Ltd (in liq) [2010] NSWSC 739
Melluish v Underwood Development Pty Ltd [2004] NSWSC 429
MiltonbrookPty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWSC 38; 71 NSWLR 262
Re Data Homes Pty Ltd (in liq) [1972] 2 NSWLR 22
Re Future Life Enterprises Pty Ltd (1994) 33 NSWLR 559
Re Gia Firenze Investments Pty Ltd [2013] NSWSC 99
Re Llenruk Pty Ltd [2013] NSWSC 1430
Re Mascot Home Furnishers Pty Ltd [1970] VR 593
Re Nature Springs Pty Ltd (in liq) (1994) 13 ACSR 50
Re Telescriptor Syndicate Ltd [1903] 2 Ch 174
Re Warbler Pty Ltd (1982) 6 ACLR 526
Reid v Action Insulation Engineers Pty Ltd [2009] NSWSC 1182
Simitzis v Australian Securities and Investments Commission [2017] VSC 614
Stone v ACN 000 337 940 Pty Ltd [2008] NSWSC 1058; 68 ACSR 424
Wyse & Young International Pty Ltd v Corrado [2015] NSWSC 1863

Yeo v Australian Securities and Investments Commission; Re Ji Woo International Education Centre Pty Ltd (deregistered) [2017] FCA…

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AGLC
Manny v David Lardner & Associates [2018] ACTSC 159
Case
[2018] ACTSC 159
Decision Date

CaseChat Overview and Summary

The plaintiff in this case sought to reinstate three companies that had previously been in liquidation in order to bring proceedings against the defendants. The companies in question were placed in liquidation and the plaintiff, as a creditor, had an interest in the outcome of the liquidation process. The defendants, David Lardner & Associates, were engaged by the liquidators to manage the liquidation process. The plaintiff sought to reinstate the companies to pursue legal action against the defendants for their role in the liquidation process.

The primary legal issue before the court was whether the plaintiff was entitled to reinstate the companies without the consent of a liquidator. The court considered whether reinstatement was just and equitable in the circumstances of the case. The court noted that the Companies Act provided for the reinstatement of a company that had been in liquidation, but only if it was just and equitable to do so. The court also considered the potential impact of reinstatement on the creditors of the companies, as well as the potential costs associated with the reinstatement process.

The court held that the plaintiff was not entitled to reinstate the companies without the consent of a liquidator. The court noted that the Companies Act required the consent of a liquidator before a company could be reinstated, and that there was no evidence that any liquidator had consented to act upon reinstatement. The court also noted that reinstatement could have a significant impact on the creditors of the companies, and that the plaintiff had not provided any undertaking as to the funding of the costs of a liquidator. The court held that reinstatement was not just and equitable in the circumstances of the case, and declined to grant the plaintiff's application.

The court directed the plaintiff to serve a copy of the judgment on any creditors of the companies and stood the matter over to give the plaintiff the opportunity to bring in a consent of liquidator and any undertaking for the funding of the costs of that liquidator. This meant that the plaintiff had to take certain steps before the court would consider reinstating the companies, including obtaining the consent of a liquidator and providing an undertaking as to the funding of the costs of that liquidator.

Orders

Orders of the court

Direct the plaintiff to serve a copy of this judgment on any creditors of the Companies and stand the matter over in order to give the plaintiff the opportunity to bring in a consent of liquidator and any undertaking for the funding of the costs of that liquidator.

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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