(These reasons were delivered orally on 3 July 2025 and have been edited from the court's record of the decision to include headings, references and to correct matters of grammar and expression)
[2]
By originating summons filed on 15 May 2025, the plaintiff, SRG Global Integrated Services Pty Ltd, sought orders pursuant to s 471B of the Corporations Act 2001 (Cth) for leave to commence proceedings against the defendant, Eire Construction Group Pty Ltd (in liquidation).
The application is supported by affidavits of Louis van Bergen sworn on 14 May 2025 and 20 June 2025.
This matter first came before the court on 26 June 2025. There were some procedural matters that needed to be addressed.
However, the application ought not fail merely because the incorrect form and process has been used. Such can be excused as an irregularity under O 2 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC) as set out by Acting Master McDonald in Hartland v Firm Construction Pty Ltd (in liq).[1]
I made orders on 26 June 2025 pursuant to O 2 r 1 RSC that the originating summons be treated as if it were an originating process and the application proceed as if commenced by originating process pursuant to r 2.2 of the Corporations Rules.
The second matter was that the application had been brought under s 471B of the Corporations Act which provides, relevantly, that while a company is being wound up in insolvency, or by the court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with a proceeding in a court against the company.
The current and historical ASIC extract attached to Mr van Bergen's affidavit sworn on 14 May 2025 records that notice was given of appointment of a liquidator by creditors' voluntary winding up on 16 November 2018.
That followed a special resolution to wind up the defendant on 13 November 2018 when John Ross Lindholm and George Georges were appointed as liquidators of the defendant.
As such, the applicable provision of the Corporations Act under which the application should be brought and orders made is s 500(2), which provides, relevantly, that after the passing of a resolution for voluntary winding up, no action or other civil proceeding is to be commenced or proceeded with against the company except by leave of the court.
I also made orders, on 26 June 2025, that the plaintiff have leave to amend the originating summons to seek leave to commence proceedings against the defendant pursuant to s 500(2) of the Corporations Act, and for an amended originating summons to be filed and served by 1 July 2025. The application was otherwise adjourned to today and costs reserved.
The plaintiff has filed and served the amended originating summons in accordance with the orders made. The liquidators of the defendant are on notice of the hearing of the application. An affidavit of service of Dennis John Domaille sworn on 30 June 2025 verifies service on them on that date.
I have considered the affidavits filed in support of the application and, on the last occasion, counsel for the plaintiff took me through the materials that demonstrate there is insurance cover for the claim, the subject of the proposed third party proceedings.
[3]
The factual background to the application is set out in the supporting affidavits. What follows is a summary:
The plaintiff is a construction contractor specialising in the design, supply and installation of scaffold systems for commercial and residential construction projects.
The plaintiff is a defendant in an action commenced by Warren Manning in District Court of Western Australia action CIV 1910 of 2021 (District Court Action).
The defendant was a construction contractor specialising in design, fabrication and installation of commercial facades, cladding and prefabricated steel framing.
As noted, by a special resolution of the defendant on 13 November 2018, John Ross Lindholm and George Georges were appointed as liquidators of the defendant by creditors' voluntary winding up.
The ASIC extract attached to Mr van Bergen's affidavit sworn on 14 May 2025 records that the liquidation of the defendant company is ongoing.
In the District Court Action, Mr Manning alleges he suffered personal injuries whilst working on a construction site at Barrack Street in Perth on 5 June 2018. He commenced the District Court Action on 1 June 2021 claiming damages for personal injuries against his employer, Hays Specialist Recruitment (Australia) Pty Ltd, a recruitment and labour hire agency, the plaintiff in this proceeding (as the contractor responsible for installing the scaffolding), and the principal contractor of the site, Probuild Constructions (Aust) Pty Ltd.
Mr Manning alleges in the District Court Action that the incident the subject of his claim was caused or contributed to by the defendant by reason of their failures to provide him with a safe place or system of work.
Mr van Bergen deposes to proposed third party proceedings by which the plaintiff intends to join the defendant in this proceeding as a third party to the District Court Action so that the plaintiff may pursue contribution from the defendant pursuant to s 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA).
The plaintiff filed an application in the District Court Action on 29 April 2025 for leave to commence third party proceedings against the defendant. That hearing has been adjourned to 31 July 2025 pending determination of this application.
[4]
By the application, as amended, the plaintiff seeks leave of this court, pursuant to s 500(2) of the Corporations Act, to commence and proceed with the third party proceedings.
[5]
The principles applicable to the grant of leave under s 500(2) of the Corporations Act are well established. They were summarised by Beech J (as his Honour then was) in Latimer v Cutwood Panels Pty Ltd (in liq)[2] and have been applied in subsequent decisions of the court, including Hartland v Firm Construction Pty Ltd (in liq),[3] to which I have referred.
It is not necessary for me to repeat those principles in detail. Relevantly, before the court allows an action to commence against a company in liquidation:
It should be satisfied there is no prejudice to the company's creditors or to the orderly winding up of the company;
The court should not grant leave if it appears there is no possibility the company will be able to meet any damages awarded against it;
The court should not give its imprimatur to fruitless proceedings which will waste time and money;
The position is different if there is an insurer standing behind the company in liquidation that will meet the amount of any judgment awarded; and
The plaintiff must also demonstrate that there is a serious question to be tried.
[6]
I make no comment on the prospects of the proposed third party proceedings. However, I am satisfied, having regard to the affidavit evidence filed in support of the application, that the plaintiff has demonstrated there is a serious question to be tried and that it has grounds to pursue third party proceedings against the defendant. It is, of course, a matter for the District Court whether leave to issue the proposed third party proceedings in the District Court Action should be granted.
There has been no opposition to the application for leave by the liquidators of the defendant, who are on notice of the application and today's hearing. Given the short notice following filing and service of the amended application on the liquidators, there will be liberty to apply.
In the absence of any evidence of prejudice to the defendant's creditors or to the orderly winding up of the defendant, I am satisfied there is insurance cover for the claim and that leave, pursuant to s 500(2) of the Corporations Act, to commence and procced with third party proceedings against the defendant in the District Court Action should be granted.
As is usual and proposed in the plaintiff's minute, any judgment ultimately obtained in the District Court Action is not to be enforced without leave of this court.
The plaintiff does not seek its costs and proposes there be no order as to the costs of and occasioned by the amendment of the originating summons. That is appropriate in the circumstances. Otherwise, I am satisfied the order sought that the costs of this application, including those reserved on 26 June 2025, be costs in the cause of the third party proceedings to be commenced in the District Court is appropriate.
[7]
I will make orders as follows:
The plaintiff has leave, and to the extent required nunc pro tunc, pursuant to s 500(2) of the Corporations Act 2001 (Cth) to commence third party proceedings against the defendant, Eire Construction Group Pty Ltd (ACN 606 657 863), by applying for leave to issue, and if leave is granted, to issue a third party notice to the defendant in action CIV 1910 of 2021 in the District Court of Western Australia (District Court Action).
The plaintiff must not enforce any judgment obtained against the defendant in the third party proceedings in the District Court Action without leave of the Supreme Court of Western Australia.
The parties have liberty to apply in relation to the leave granted by these orders.
A copy of these orders is to be served on the liquidators of the defendant by email and post.
No order as to the costs of and occasioned by the amendment to the originating summons.
Otherwise, the costs of the application, including those reserved on 26 June 2025, be costs in the cause of the third party proceedings to be commenced in the District Court Action pursuant to the leave granted in order 1.
[8]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[9]
[1] Hartland v Firm Construction Pty Ltd (in liq) [2023] WASC 147 [19], [21] - [31].
[10]
[2] Latimer v Cutwood Panels Pty Ltd (in liq) [2012] WASC 408 [5] - [14] .