Mainland Property Holdings Pty Ltd (Receivers and Managers Appointed) v Naplend Pty Ltd [2022] FCA 1305

Federal Court of Australia

Mainland Property Holdings Pty Ltd (Receivers and Managers Appointed) v Naplend Pty Ltd [2022] FCA 1305 File number(s): VID 192 of 2022

Judgment of: MCELWAINE J

Date of judgment: 4 November 2022

Catchwords: CORPORATIONS – whether director is authorised to commence and maintain legal proceedings when company is in receivership – director is so authorised – whether actual or likely prejudice to the secured creditor and receivers – costs indemnity necessary to ensure there is no likelihood of prejudice to secured creditor and receivers – director to provide personal indemnity and security for costs PRACTICE AND PROCEDURE – application for summary dismissal, alternatively security for costs – question whether proceeding was commenced without authority – application for summary dismissal dismissed – orders for indemnity and security for costs made

Legislation: Australian Securities and Investments Commission Act 2001 ss 12CB Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) s 21 Corporations Act 2001 (Cth) ss 180, 181, 182, 420 Federal Court of Australia Act 1976 (Cth) ss 31A(2), 54A Federal Court Rules 2011 (Cth) r 26.01 Conveyancing Act 1919 (NSW) s 111A Property law Act (Qld) s 85

Cases cited: Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; [2012] HCA 30 Bank of New Zealand v Essington Developments Pty Ltd (1991) 5 ACSR 86 C v Commonwealth (2015) 234 FCR 81; [2015] FCAFC 113 Colonial Bank v Whinney (1885) 30 Ch D 261 Danish Mercantile Co Ltd v Beaumont [1951] 1 Ch 680 Deangrove Pty Ltd v Commonwealth Bank of Australia (2001) 108 FCR 77; [2001] FCA173 DHH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd (1969) 2 NSWR 782 Legione v Hateley (1983) 152 CLR 406 National Trustees Executors and Agency Co of Australasia Ltd v Federal Commissioner of Taxation (Cain's Case) (1954) 91 CLR 540 Newhart Developments Ltd v Co-Operative Commercial Bank Ltd [1978] QB 814 Oswal v Burrup Fertilisers Pty Ltd (2013) 295 ALR 708; [2013] FCAFC 9 Ox Operations Pty Ltd v Land Mark Property Developments (Vic) Pty Ltd (in liquidation) [2007] FCA 1221 Re Geneva Finance Ltd; Quigley v Cook (1992) 7 WAR 496 Sun-Life Properties Pty Ltd v Chellaston Pty Ltd (1993) 10 ACSR 476 Tudor Grange Holdings Ltd v Citibank NA [1992] Ch 53 Lightman G & Moss G on The Law of Administrators and Receivers of Companies (6th Ed, 2017, Sweet & Maxwell) Robinson T & Walton P, Kerr & Hunter on Receivers and Administrators (20th Ed, 2018, Sweet & Maxwell)