Federal Court of Australia
Federal Court of Australia
Gadsden v MacKinnon (Liquidator), in the matter of Allibi Pty Ltd (in liq) [2023] FCA 647 File number(s): VID 590 of 2022
Judgment of: O'CALLAGHAN J
Date of judgment: 15 June 2023
Catchwords: CORPORATIONS – insolvency – application by directors and a creditor pursuant to ss 90-10, 90-15 and 90-20 of the Insolvency Practice Schedule (Corporations) to replace the first and second defendants as external administrators – where external administrators (being liquidators) made demand that directors of the company in liquidation pay the sum of $69m in respect of damages for breaches of various provisions of the Corporations Act 2001 (Cth) for which there was no proper foundation – where demand was an abuse of process – role of court appointed external administrators as officers of the court considered – where making of and persisting with demand inconsistent with that role – where such abuse of process founded order for removal and the appointment of new liquidators
Legislation: Corporations Act 2001 (Cth) ss 180, 181, 182, 503, 556, 588FB, 588FDA Insolvency Practice Rules (Corporations) 2016 (Cth) s 70-40 Insolvency Practice Schedule (Corporations) ss 70-40, 70-45, 90-10, 90-15, 90-20
Cases cited: Accord Pacific Holdings v Accord Pacific Land Pty Ltd [2011] NSWSC 707 AMP Music Box Enterprises Ltd v Hoffman [2002] BCC 996; [2002] EWHC 1899 (Ch) Australian Securities and Investments Commission v Franklin (2014) 223 FCR 204 Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524 Grosvenor Hill (Qld) Pty Ltd v Barber (1994) 48 FCR 301 In re Majory [1955] Ch 600 In the matter of Columbia Private Holdings Pty Ltd [2017] NSWSC 1859 Independent Cement and Lime Pty Ltd v Brick and Block Co Ltd (in liq) (rec and mgrs apptd) (2010) 267 ALR 613; [2010] FCA 352 Re DW Marketing Pty Ltd (in liq) [2009] VSC 663 Re FW Projects Pty Ltd (in liq) (2019) ACLC 19-034; [2019] NSWSC 892 Re KASO (2018) 133 ACSR 473; [2018] VSC 774 Re Qintex Group Management Services Pty Ltd (in liq) [1997] 2 Qd R 91 Re Sheahan & Lock (as liquidator of Valofo Pty Ltd (in liq)) [2010] NSWSC 1255 Re St Gregory's Armenian School (in liq) (2012) 92 ACSR 588; [2012] NSWSC 1215 Viscariello v Macks (2014) 103 ASCR 542; [2014] SASC 189
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