In the matter of MotorACN 005 188 054 Pty Ltd (in liq); The Elastomers Pty Ltd v MotorACN 005 188 054 Pty Ltd

REASONS FOR JUDGMENT 1 There are four matters before the Court. The first concerns an application for leave under s 471B of the Corporations Act 2001 (Cth). The second concerns an application for leave to file and serve an amended defence. The third concerns further directions in this proceeding and the last matter relates to the costs of the directions hearing on 29 August 2006. The defendants do not consent to, but do not oppose, the grant of leave to the plaintiff to proceed against the company in liquidation pursuant to s 471B.

Application for leave under section 471B 2 The grounds of the application for leave to proceed against the first defendant in liquidation are set out in an affidavit of Joanne Louise McCauley sworn 19 September 2006. Those grounds are as follows. 3 First, the Court has previously granted leave to the plaintiff to bring and prosecute this proceeding against a company which was at that stage under administration. Merkel J granted the leave application under s 440D(1) of the Corporations Act. Secondly, it is said that the plaintiff's claims are unable to be determined by the liquidators of the first defendant in the ordinary course of the liquidation in the sense that any proof of debt is likely to be rejected by the liquidators and the decision would then be appealed by the plaintiff. Thirdly, it is said that this litigation has progressed to a stage where it is almost ready to be fixed for trial. Fourthly, it is said that the plaintiff would be unduly prejudiced in the event that it was not given an opportunity to proceed with this application. 4 In oral submissions, Mr Galvin, counsel for the defendants, drew attention to a further matter. Mr Galvin pointed out that the claims brought by the plaintiff included proprietary claims, including a claim that a lien existed which would not be able to be resolved by a proof of debt procedure. 5 I am satisfied that it is an appropriate case to grant leave under s 471B. The question for the Court is whether there is a real dispute which involves serious questions and whether the action will impede the orderly winding-up of the company or cause prejudice to other creditors. Relevant factors include the nature of the claim, including whether the claim involves any proprietary elements such as a claim for a lien, and the stage at which the proceedings have reached when the company is placed in liquidation. It is also relevant whether there is a real prospect that the liquidator would reject any proof of debt so that the claimant would have to press its case in an appeal to the Court. Having regard to the stage of these proceedings and the nature of the claims raised, it is appropriate to grant leave. Cases that support that view include Ogilvie-Grant v East (1983) 7 ACLR 669 at 672 and Re Hewson and Douglas Ltd (in liq) [1993] 2 Qd R 375. 6 Accordingly, I will grant leave under s 471B for the plaintiff to proceed against the first defendant in liquidation.