Park v Lanray Industries Pty Ltd

[2010] QCA 114

COURT OF APPEAL

MUIR JA

Appeal No 3613 of 2010
SC No 5675 of 2006

JOHN RICHARD PARK and   Plaintiffs/
LACHLAN STUART McINTOSH  Respondents

and

LANRAY INDUSTRIES PTY LTD  First Defendant/
ACN 010 737 946  First Appellant

and

SUNSHINE IMPORTS PTY LTD  Second Defendant/  Second Appellant

and

ROUGHEND PINEAPPLE PTY LTD  Third Defendant/
ACN 074 982 558  Third Appellant

and

SUNSHINE LAND NOMINEES PTY LTD  Fourth Defendant/
ACN 010 050 567  Fourth Appellant

and

THE KING OF NUTS PTY LTD  Fifth Defendant/
ACN 085 903 895  Fifth Appellant

and

ROOFHILL PTY LTD  Sixth Defendant/
ACN 078 777 867  Sixth Appellant

and

SUNFARM PTY LTD  Seventh Defendant/
ACN 091 286 967  Seventh Appellant

BRISBANE

DATE 18/05/2010
JUDGMENT

HIS HONOUR:  The respondents to this application for security for costs have appealed against the primary Judge's decision giving leave to the applicants for security for costs (the respondents to the appeal) to file a further amended statement of claim and refusing to strike out the proceedings.

In the proceedings the respondent liquidators brought the claims in their own name without identifying their capacity as liquidators or, where appropriate, that the claim was brought on the behalf of the company.  The causes of action relied on by the respondents in the proceedings are:

(a)       unjust enrichment;

(b)under s 588FF of the Corporations Act 2001 (Cth) (voidable transactions); and

(c)under s 588FH of the Corporations Act 2001 (Cth) (uncommercial transactions).

The appellants contend that the proper plaintiff for the unjust enrichment claim is the company, not the respondents. In that regard, they relied on s 477(2)(a) of the Corporations Act 2001 (Cth) which relevantly provides:

"Subject to this section, a liquidator of a company may ... bring or defend any legal proceeding in the name and on behalf of the company."

Her Honour held, at least implicitly, that although it was necessary for the company itself to be the plaintiff in respect of the unjust enrichment claim that could be achieved by identifying the respondents as liquidators of the company.  It is contended by Mr Rangiah, on behalf of the appellants, that this does not satisfy the requirements of s 477(2) and he cites authority for his submissions.

He submits that consequently the exercise of the discretion miscarried.  It is not contended, however, that the claim is statute barred and consequently the pleading point raised is not fatal to the respondent's ultimate pursuit of the unjust enrichment claim.

In respect of the ss 588FF and 588FH claims, the contention is that the respondents were not identified as liquidators in the claim and amended statement of claim, and as the limitation period in s 588FF(3) has expired, there is no discretion to extend the period. Nevertheless, the primary Judge gave leave to amend the statement of claim to change the capacity in which the respondents could bring the proceeding.

It is argued that the primary Judge erred in holding that s 79 of the Judiciary Act 1903 (Cth) operated to pick up s…