Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2011] FCAFC 89

FEDERAL COURT OF AUSTRALIA

Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2011] FCAFC 89 Citation: Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2011] FCAFC 89

Appeal from: Fletcher and Barnet, in the matter of Octaviar Ltd (Receivers and Managers Appointed) (In Liq) and Octaviar Administration Pty Ltd (In Liq) [2011] FCA 132 Fletcher and Barnet, in the matter of Octaviar Ltd (Receivers and Managers Appointed) (In Liq) and Octaviar Administration Pty Ltd (In Liq) (No 2) [2011] FCA 315

Parties: FORTRESS CREDIT CORPORATION (AUSTRALIA) II PTY LTD (ACN 114 624 958) v WILLIAM JOHN FLETCHER AND KATHERINE ELIZABETH BARNET, OCTAVIAR LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 107 863 436) and OCTAVIAR ADMINISTRATION PTY LTD (IN LIQUIDATION) (ACN 101 069 390)

File number(s): NSD 291 of 2011 NSD 368 of 2011

Judges: EMMETT, NICHOLAS AND ROBERTSON JJ

Date of judgment: 25 July 2011

Catchwords: CORPORATIONS – powers of liquidator in winding up – whether company's entry into agreement to fund litigation intended to be commenced by a creditor was expedient for the winding up of the company's affairs and the distribution of its property – whether possible commercial return from sharing in proceeds of litigation adequate to attract s 477(2)(m) of the Corporations Act 2001 (Cth) PRACTICE AND PROCEDURE – application for leave to appeal by non-party – where prospective appellant held charge over the assets of the party to be funded in the litigation, which security would potentially be diminished according to the terms of the litigation funding agreement if that agreement were approved