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[2024] FCA 182
Federal Court of Australia
2024-03-04
Barrett J, Stewart J
Original judgment source is linked above.
STEWART J: 1 By an interlocutory process, the plaintiff seeks leave pursuant to s 471B of the Corporations Act 2001 (Cth) to proceed with its claims against the third defendant, Watchman Holdings Pty Ltd (in liquidation) - which I will refer to as Watchman. The plaintiff is the liquidator of SFG Relocation Pty Ltd (in liquidation) which I shall refer to as the company. 2 In the substantive case, the plaintiff seeks proprietary relief as well as other relief in relation to certain trademarks he claims were unlawfully removed from the company and transferred, first to Watchman and then to EW1892 Pty Ltd, the fourth defendant, a company that is controlled by Mr Fourie, the first defendant. It is alleged that Watchman was the conduit through which the trademarks were unlawfully conveyed. 3 The matter is listed for trial on 15 to 18 April 2024. Watchman went into liquidation on 22 September 2023. 4 The defendants, including the liquidators of Watchman, are unrepresented. They have not appeared to oppose the leave that is sought, nor have they indicated any such opposition. The principles concerning leave to proceed against a company in liquidation are well-established. 5 A person who seeks leave must demonstrate that there is a real dispute in relation to which leave is sought and that there is a good reason why it is not appropriate for a proof of debt to be lodged. In Chahwan v Euphoric Pty Ltd [2006] NSWSC 1002 at [40], Barrett J held that courts will usually grant leave in circumstances where the applicant seeks proprietary remedies, because such remedies cannot be accommodated in the proof of debt regime. 6 I am satisfied that I should exercise my discretion in favour of granting the plaintiff leave to continue the proceeding against Watchman. There are a number of reasons for that, as submitted by Mr Afshar for the plaintiff, but the overwhelming reason is that proprietary relief is sought which - as mentioned - cannot be accommodated in the proof of debt regime. Leave should therefore be granted. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.
SCHEDULE OF PARTIES NSD 817 of 2021 Defendants Fourth Defendant: EW1892 PTY LTD ACN 650 887 942
Pleash (Liquidator), in the matter of SFG Relocations Pty Ltd
Fourie