Smart Company Pty Ltd (In Liquidation) v Clipsal Australia Pty Ltd [2011] FCA 35

FEDERAL COURT OF AUSTRALIA

Smart Company Pty Ltd (In Liquidation) v Clipsal Australia Pty Ltd [2011] FCA 35 Citation: Smart Company Pty Ltd (In Liquidation) v Clipsal Australia Pty Ltd [2011] FCA 35

Parties: THE SMART COMPANY PTY LTD ACN 061 975 344 (IN LIQUIDATION) v CLIPSAL AUSTRALIA PTY LTD ACN 007 873 529, CLIPSAL INTEGRATED SYSTEMS PTY LTD ACN 089 444 931 and CLIPSAL TECHNOLOGIES AUSTRALIA PTY LTD ACN 089 444 931

File number: WAD 132 of 2004

Judge: LANDER J

Date of judgment: 2 February 2011

Catchwords: PRACTICE AND PROCEDURE – joinder of third party – company in liquidation – application by third party to be joined to the proceeding on the basis of a purported assignment of certain choses in action – application by contributory for Court to give leave under its implied power to permit proceeding to be brought on behalf of company in liquidation – exercise of implied power – relevant factors CORPORATIONS – liquidation – application of ss 236 and 237 when company in liquidation – application by a contributory for leave to continue proceeding in the name of the company – implied power of Court to grant leave Held: Application dismissed – assignment not valid basis for joinder – exercise of implied power not appropriate – ss 236 and 237 not operable where company in liquidation.

Legislation: Corporations Act 2001 (Cth) ss 236, 237

Cases cited: Aliprandi v Griffith Vintners Pty Ltd (In Liq) (1991) 6 ACSR 250 followed Cadina Express Pty Ltd (In Liq) v Deputy Commissioner of Taxation (1999) 157 FLR 424 applied Cape Breton v Fenn (1881) 17 Ch D 198 applied Carpenter v Pioneer Park Pty Ltd (2008) 71 NSWLR 577 applied Pearl Coast Divers Pty Ltd (in liq) v Cossack Pearls Pty Ltd (2008) 249 ALR 591 followed Russell v Westpac Banking Corporation (1994) 61 SASR 583 applied