Australian Capital Territory Commissioner for Revenue v Slaven [2009] FCA 744

FEDERAL COURT OF AUSTRALIA

Australian Capital Territory Commissioner for Revenue v Slaven [2009] FCA 744

CORPORATIONS –– powers of the Court in a winding up –– creditor's voluntary winding up –– application by creditor for order authorising it to commence and prosecute proceedings in the name of insolvent company as co-plaintiff –– creditor also bringing claims in own right –– source of Court's power to make order –– Corporations Act 2001 (Cth) –– statutory grants of jurisdiction must be construed broadly –– ss 511 and 477(6) of the Corporations Act give the Court jurisdiction over matters arising from the exercise of liquidator's powers in a winding up –– whether power is an incident of inherent or implied jurisdiction of superior court of record –– ss 511 and 477(6) give Court power to authorise third party to use name of company being wound up to commence and prosecute proceedings CORPORATIONS –– order authorising creditor to commence and prosecute proceedings in company's name –– appropriate terms of order –– whether creditor/plaintiff should be permitted to amend pleadings, add or remove parties and causes of action –– order limited to authorise commencement and conduct of the proceedings identified in the evidence CORPORATIONS –– entitlement of liquidator to be properly informed of nature and basis of proceedings sought to be brought by creditor in company's name prior to application to the Court HIGH COURT AND FEDERAL COURT –– federal jurisdiction –– Federal Court's jurisdiction to make order authorising creditor to commence and prosecute proceedings in name of company being wound up –– creditor's right to apply to Court for order in winding up under ss 511 and 477(6) –– right exists by virtue of federal law EQUITY –– trading trust –– entitlement of trustee or corporate trustee of trading trust who has incurred liabilities in performance of duties to indemnification out of trust property –– enforcement of entitlement of trustee to proprietary interest in trust property against beneficiaries or directors of trading trust who caused payments to be made before trustee or corporation had paid likely or known debts Held: the plaintiff be authorised at its own expense and risk as to costs, to commence and prosecute proceedings in the name of the company as a plaintiff or co-plaintiff Words and Phrases: 'inherent or implied jurisdiction' Corporations Act 2001 (Cth), ss 477, 511 Federal Court of Australia Act 1976 (Cth), s 5(2) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 9 Judiciary Act 1903, s 39B(1A)(c) Federal Court (Corporations) Rules 2000, 2.13(1) Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT), s 4 Agar v Hyde (2000) 201 CLR 552 discussed Aliprandi v Griffith Vintners Pty Ltd (in liq) (1991) 6 ACSR 250 followed Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 discussed Chahwan v Euphoric Pty Ltd (2008) 245 ALR 780 cited Christianos v Aloridge Pty Limited (1995) 59 FCR 273 cited Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226 cited Federal Commissioner of Taxation v Linter Textiles Australia Ltd (in liq) (2005) 220 CLR 592 cited Ferguson v Wallbridge [1935] 3 DLR 66 discussed Lloyd-Owen v Bull [1936] 4 DLR 273 followed LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 applied Magarditch v Australian & New Zealand Bank Group Limited (1999) 32 ACSR 367 followed Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 noted Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360 applied Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 applied Promaco Conventions Pty Limited v Dedline Printing Pty Limited (2007) 159 FCR 486 cited Re Wakim; Ex parte McNally (1999) 198 CLR 511 applied Russell v Westpac Banking Corporation (1994) 61 SASR 583 discussed Wenham v General Credits Ltd (unreported 16 December 1988 Supreme Court of New South Wales; BC8801203) followed