The Airtourer Co-operative Ltd v Millicer Aircraft Industries Pty Ltd (subject to a Deed of Company Arrangement) [2004] FCA 393

FEDERAL COURT OF AUSTRALIA

The Airtourer Co-operative Ltd v Millicer Aircraft Industries Pty Ltd (subject to a Deed of Company Arrangement) [2004] FCA 393 PRACTICE & PROCEDURE – whether disposition by consent constituted an issue estoppel or whether subsequent proceedings amounted to an abuse of process. CORPORATIONS – claim for specific performance against company – whether not maintainable when company enters into scheme of arrangement. Corporations Law Arnold v National Westminster Bank plc [1991] 2 AC 93 cited Brash Holdings Ltd v Katile Pty Ltd (1994) 1 VR 24 discussed Commissioner of Taxation v GIO (NSW) (1993) 45 FCR 284 referred to Community Development Pty Ltd v Engwirda Construction Co (1969) 120 CLR 455 referred to Fisher v Madden as Receiver and Manager of Dataflow Computer Services Pty Ltd (2001) 54 NSWLR 179 cited Freevale Ltd v Metrostore (Holdings) Ltd [1984] 1 Ch 199 referred to Hamilton v National Australia Bank Ltd (1996) 66 FCR 12 referred to Holroyd v Marshall (1862) 10 HLC 191 referred to In re Kayford Ltd (in liquidation) [1975] 1 WLR 279 referred to In re Lind (1915) 2 Ch 345 referred to J & B Records Ltd v Brashs Pty Ltd (voluntary administrator appointed) (1995) 36 NSWLR 172 referred to Lam Soon Australia Pty Ltd (Administrator Appointed) v Molit Pty Ltd (1996) 70 FCR 34 referred to MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636 referred to Re Reis; Ex parte Clough (1904) 2 KB 769 cited Sonenco (No 77) Pty Ltd v Silvia (1989) 89 ALR 437 referred to Swiss Bank Corp v Lloyds Bank Ltd [1979] 1 Ch 548 cited Zambena Pty Ltd v Capitol Laundry Pty Ltd (1996) 14 ACLC 241 distinguished Carter on Contract, Butterworths Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed, Butterworths, London (1996) 0 A Keay, McPherson: The Law of Company Liquidation, 4th ed, LBC Information Services, Sydney, 1999