Gartner v Ernst & Young [2003] FCA 152

FEDERAL COURT OF AUSTRALIA

Gartner v Ernst & Young [2003] FCA 152 CORPORATIONS – authority of directors to institute proceedings in name of company after appointment of receivers – mortgagee appointed receivers and managers to a group of companies – directors brought proceedings in the name of companies against third parties – application by third parties to dismiss proceedings as proceedings not authorised by receivers and managers – whether directors possess authority to bring proceedings on behalf of companies in receivership – whether prior consent to proceedings from receivers is necessary – whether such consent can only be given where receivers had secured a satisfactory indemnity to protect assets subject of receivership. Trade Practices Act 1974 (Cth), ss 51AA, 52, 82 Corporations Act 2001 (Cth), s 420 Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 136 ALR 733 - cited South Australian Asset Management Corporation v Sheahan (1995) 16 ASCR 45 – followed Gough's Garages Ltd v Pugsley [1930] 1 KB 615 – followed Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 – followed Hawkesbury Development Co. Pty Ltd v Landmark Finance Pty Ltd [1969] 2 NSWR 782 – cited Deangrove Pty Ltd (Receivers and Managers Appointed) v Commonwealth Bank of Australia (2001) 108 FCR 77, [2001] FCA 173 – applied Newhart Developments Ltd v Co-operative Commercial Bank Ltd [1978] 1 QB 814 – applied Town and Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd (O'Loughlin J, 19 July 1991, unreported, [1991] FCA 459 – referred Bank of New Zealand v Essington Developments Pty Ltd (1991) 9 ACLC 1041 – cited Re Geneva Finance Ltd (Receiver and Manager Appointed); Quigley v Cook (1992) 7 WAR 496 – considered Cook v Northoak Holdings Pty Ltd (Receiver and Manager Appointed) [1998] WASCA 110 – considered Brooklands Motor Co. Ltd (In Receivership) v Bridge Wholesale Acceptance Corporation (Australia) Ltd [1993] MCLR 448 – followed MICHAEL JOHN GARTNER, ALICE WINIFRED GARTNER, TYNSKI PTY LIMITED (ACN 008 162 123), NORSBAY PTY LIMITED (ACN 008 205 687), FRESREND PTY LIMITED (ACN 008 179 990), GARTNER FARMS PTY LIMITED (ACN 086 128 880), AUSVINE VITICULTURAL MANAGEMENT PTY LIMITED (ACN 007 184 901), GARTNERS' VINICULTURE MANAGEMENT PTY LIMITED (ACN 080 534 989), SKYBAY PTY LIMITED (ACN 008 163 782), VAMTOWN PTY LIMITED (ACN 008 061 407), MJ GARTNER PTY LIMITED (ACN 077 644 181) v ERNST & YOUNG, ERNST & YOUNG CORPORATE FINANCE PTY LIMITED (ACN 003 599 844), NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) S.189 of 2002 MANSFIELD J 14 MARCH 2003 ADELAIDE