Embedded Claims Pty Ltd v Litigation Finance (Australia) Pty Ltd [2023] FCAFC 30

Federal Court of Australia

Embedded Claims Pty Ltd v Litigation Finance (Australia) Pty Ltd [2023] FCAFC 30 Appeal from: Embedded Claims Pty Ltd v Litigation Finance (Australia) Pty Ltd [2022] FCA 986

File numbers: NSD 742 of 2022

Judgment of: MARKOVIC, COLVIN and THAWLEY JJ

Date of judgment: 9 March 2023

Catchwords: CORPORATIONS – appeal against order dismissing originating process which sought a declaration that shares recorded in a company's register and the Australian Securities and Investments Commission's (ASIC) public register vested in trustees in bankruptcy and related orders – whether the primary judge erred in failing to find, on the balance of probabilities, that a transfer of shares in fact occurred – where transfer of shares was recorded on a form lodged with ASIC and recorded on ASIC's public register – whether the primary judge failed to have regard to the presumption of regularity – where appellants rely on an ASIC search and the statutory presumption in s 1274B(2) of the Corporations Act 2001 (Cth) as proof of a matter – where there is evidence to the contrary of the prima facie proof made available by s 1274B(2) of the Act – appeal dismissed

Legislation: Bankruptcy Act 1966 (Cth), s 58 subs (1)(b) Corporations Act 2001 (Cth), ss 168, 169, 178A subs (1) and (2), 178D, 1274B subs (2), 1308 subs (1) and (2) Companies Act 1890 (Vic), s 54

Cases cited: Barboutis v The Kart Centre Pty Ltd [No 2] [2020] WASCA 41 Dawson v Westpac Banking Corporation Limited (1991) 66 ALJR 94; [1991] HCA 52 In the matter of Embedded Claims Pty Ltd [2021] NSWSC 969 McLean Bros & Rigg Ltd. v Grice (1906) 4 CLR 835