Federal Court of Australia
Federal Court of Australia
Ball, in the matter of ACN 605 650 182 Pty Ltd (in liq) [2022] FCA 2 File number: NSD 573 of 2020
Judgment of: CHEESEMAN J
Date of judgment: 7 January 2022
Catchwords: CORPORATIONS – application by liquidator for approval of entry into a funding agreement and costs agreement pursuant to section 477(2B) of the Corporations Act 2001 (Cth) – where agreements are sought to be entered into for the purpose of funding and prosecuting potential claims available to the companies in liquidation – where the expiry of the limitation period to bring such claims is imminent – where the liquidations are otherwise without sufficient funds to pursue the potential claims – where present indication is that any proceedings will be vigorously opposed including by potential strike out application – whether entry into the agreements is in the interests of the administrations – Held: application successful. PRACTICE AND PROCEDURE – confidentiality orders sought in respect of evidence supporting the application – where that evidence comprises the funding agreement and costs agreement – where the liquidator deposes to the potential risk that defendants to any future proceedings may obtain a strategic advantage if the terms of the agreements were disclosed – Held: confidentiality orders made.
Legislation: Corporations Act 2001 (Cth), s 477(2B) Federal Court of Australia Act 1976 (Cth), s 37AF
Cases cited: ASE16 v Australian Securities and Investments Commission [2016] FCA 321 Australian Competition and Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 Chief Executive Officer of Australian Transaction Reports and Analysis Centre v TAB Limited (No 4) [2017] FCA 1532 Clark v Digital Wallet Pty Ltd [2020] FCA 877 Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 Hurst, in the matter of Liquor National Pty Ltd (in liq) [2019] FCA 1581 In the matter of One.Tel Limited [2014] NSWSC 457; (2014) 99 ACSR 247 Lindholm (liquidator), in the matter of Aviation 3030 Pty Ltd (in liq) [2021] FCA 1244 Pascoe, re Matrix Group Ltd (in liq) [2011] FCA 1117 Re CIC Insurance Ltd [2001] NSWSC 438; (2001) 38 ACSR 181 Re Gerard Cassegrain & Co Pty Ltd (in liq) [2013] NSWSC 257 Re Opel Networks Pty Ltd [2013] NSWSC 1245 Stewart, in the matter of Newtronics Pty Ltd [2007] FCA 1375
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