Federal Court of Australia
Federal Court of Australia
McMillan Investment Holdings Pty Ltd v Morgan [2023] FCAFC 9 Appeal from: Morgan v Sydney Allen Manufacturing Pty Limited (In Liquidation) [2021] FCA 1669
File number: NSD 1376 of 2021
Judgment of: YATES, BEACH AND MARKOVIC JJ
Date of judgment: 16 February 2023
Catchwords: BANKRUPTCY AND INSOLVENCY — appeal against making of a pooling order under s 579E(1) of Corporations Act 2001 (Cth) – whether primary judge erred in finding that s 579E(1)(b)(iv) applies – where primary judge satisfied that alleged chose in action was "particular property" capable of being "used" for the purposes of s 579E(1)(b)(iv) – where alleged chose in action was a joint right to sue held by second and third respondents to the appeal – where joint right came into existence after second and third respondents sold a business allegedly carried on jointly by them – where primary judge found a connection between alleged chose in action and a future undertaking carried on jointly by second and third respondents – whether time should be extended to permit the respondents to rely on a notice of contention to support the judgment below – appeal allowed
Legislation: Bankruptcy Act 1966 (Cth) s 43 Corporations Act 2001 (Cth) ss 439C, 553, 553D, 579, 579E, 601AD, 601AE, 601AH Corporations Regulations 2001 (Cth) regs 5.6.47, 5.6.48, 5.6.49, 5.6.50, 5.6.54, 5.6.63, sch 2 Federal Court Rules 2011 (Cth) r 36.24
Cases cited: 5G Developments Pty Ltd (in liq) v Massie [2021] FCA 791 Brodyn Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230 Capocchiano v Young [2013] NSWSC 879 Donoghue v Russells (A Firm) [2021] FCA 798 Ex parte Leung (1986) 9 FCR 518 Johnston v McGrath [2005] NSWSC 1183; 195 FLR 101 Morgan v Sydney Allen Manufacturing Pty Limited (In Liquidation) [2021] FCA 1669 Promoseven Pty Ltd v Markey, in the matter of Bluechip Development Corporation (Cairns) Pty Ltd (in liq) (recs and mgrs apptd) [2013] FCA 1281 Re Australian Hotel Acquisition (in liq) [2011] NSWSC 1374 Re Galaxy Media Pty Ltd (recs and mgrs apptd) (in liq) [2001] NSWSC 917; 167 FLR 149 Re Lombe [2011] NSWSC 1536; 87 ACSR 84 Re Mendonca; Ex parte Commissioner of Taxation (1969) 15 FLR 256 Re St Gregory's Armenian School Inc [2015] NSWSC 1465; 109 ACSR 27 Re Vassis; Ex parte Leung (1986) 9 FCR 518 Re Watch Works Australia Pty Ltd (in liq); Ex parte Frances [2020] WASC 6 Sands Contracting Pty Ltd v Cant [2021] FCA 638 Selim v McGrath [2003] NSWSC 927; 177 FLR 85 Sons of Gwalia Ltd (admin apptd) v Margaretic [2005] FCA 1305; 55 ACSR 365 Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; 169 CLR 332 Theophile v Solicitor-General [1950] AC 186 Westpac Banking Corp v Totterdell (1998) 20 WAR 150; 29 ACSR 448
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