Hastie Group Limited (in liq) v Multiplex Constructions Pty Ltd (Formerly Brookfield Multiplex Constructions Pty Ltd) (No 3) [2022] FCA 1280

FEDERAL COURT OF AUSTRALIA

Hastie Group Limited (in liq) v Multiplex Constructions Pty Ltd (Formerly Brookfield Multiplex Constructions Pty Ltd) (No 3) [2022] FCA 1280 File number: VID 1277 of 2017 VID 237 of 2022

Judgment of: MIDDLETON J

Date of judgment: 2 November 2022

Catchwords: BANKRUPTCY AND INSOLVENCY – action for debt brought by companies in liquidation and liquidator against numerous respondents – matters of principle common to various claims determined in this 'liability trial' – principles of collective enforcement and pari passu distribution – Corporations Act 2001 (Cth) (Corporations Act) Sch 2 s 90-15 – liquidator seeking various directions that he is justified and acting reasonably in the future conduct of the winding up of the companies – directions not to be made having regard to determination of matters of principle CORPORATIONS – s 553C of Corporations Act – statutory set-off – whether parties have claims to which s 553C may apply – whether mutuality satisfied with respect to Deed of Cross-Guarantee – whether s 553C operates automatically without lodging of proofs of debt – held: s 553C operates automatically CORPORATIONS – "bank guarantees" – autonomy principle – whether companies in liquidation have proprietary interests in proceeds of bank guarantees drawn down by respondents – whether drawdowns of bank guarantees voided by ss 437D or 468 of Corporations Act – whether respondents otherwise restrained from retaining bank guarantee proceeds – held: drawdowns of bank guarantees not voided and retention of proceeds not otherwise restrained CORPORATIONS – winding up by the court – ss 459A and 467B of Corporations Act – application for order for winding up by the court where company already being wound up voluntarily – held: application refused LIMITATION OF ACTIONS – whether applicants' claims sufficiently pleaded by way of initial originating process and concise statement within limitation period – held: applicants' claims sufficiently pleaded and not statute-barred if within limitation period