Tyropanis v Smurf's Traffic Management Pty Ltd (In Liq)

[2007] NSWSC 123

CITATION:	Tyropanis v Smurf's Traffic Management Pty Ltd (In Liq) [2007] NSWSC 123
HEARING DATE(S):	20 February 2007
JUDGMENT DATE :	20 February 2007
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Leave to proceed granted under s 500(2) of the Corporations Act 2001 (Cth) against company in voluntary liquidation but judgment against company not to be enforced without further leave of the Court.
CATCHWORDS:	CORPORATIONS [1558] – Winding up – Winding up voluntarily – Stay of proceedings – Grant leave to proceed – Company in voluntary liquidation insured against claim – Leave to proceed granted – Usual terms.
LEGISLATION CITED:	Corporations Act 2001 (Cth) ss 471B, 500(2) & 601AH
PARTIES:	Athanasios Tyropanis (P) Smurf's Traffic Management Pty Limited (In Liquidation) (D)`
FILE NUMBER(S):	SC 1332/07
COUNSEL:	R Goodridge then J Kospetas, Solicitor (P) No appearance (D)
SOLICITORS:	Firths (P) No appearance (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 20 FEBRUARY 2007

1332/07 ATHANASIOS TYROPANIS v SMURF’S TRAFFIC MANAGEMENT PTY LIMITED (IN LIQ)

JUDGMENT

1 HIS HONOUR: This matter has taken some twists and turns and some of the turns appear to have been ill-based.

2 The plaintiff originally applied for leave to proceed with a personal injuries claim made by the plaintiff against the defendant, a company in liquidation, in proceedings 5174 of 2005 in the District Court of New South Wales at Sydney. It is to this order originally claimed that I find the plaintiff entitled on the evidence before me.

3 When the matter came on for hearing this morning it was put to me that the defendant company had been deregistered and that what was wanted was an order under s 601AH of the Corporations Act 2001 (Cth) (“the CA”) restoring the defendant to the register. However, a perusal of the evidence showed that the company has not been deregistered, although it is in liquidation.

4 It was then suggested that what was being sought was an order for the stay or termination of the liquidation. This is not necessary for the purpose of proceeding with the District Court proceedings on a claim against which the defendant was insured. Furthermore, no notice has been previously given, nor the liquidator’s view sought on such an application, and there is no evidence to justify the making of such an order.

5 The orders that I propose to make are, therefore, the conventional orders, that the plaintiff have leave to proceed against the defendant, but that any judgment obtained in the District Court proceedings should not be enforced without the further leave of the Court. I am prepared to make the order for costs sought, that the costs of these proceedings be costs in the cause in the District Court proceedings.

6 The liquidation involved, being a creditor’s voluntary liquidation, the order for leave should not be made under s 471B of the CA, as originally suggested, but under s 500(2).

7 The orders of the court will therefore be:

(1) I grant the plaintiff leave to file in Court the affidavit of S Brigstocke sworn 19 February 2007.
(2) Pursuant to s 500(2) of the Corporations Act 2001 (Cth) I grant to the plaintiff leave to proceed against the defendant in proceedings 5174 of 2005 in the District Court of New South Wales at Sydney.
(3) I order that any judgment obtained in the said District Court proceedings not be enforced without the further leave of this Court.
(4) I order that the costs of these proceedings be costs in the cause in the District Court proceedings.
(5) I direct that orders (2) and (3) be entered forthwith.

**********