Lucky v Ives [2023] FCA 1571

Federal Court of Australia

Lucky v Ives [2023] FCA 1571 File number(s): NSD 1483 of 2023

Judgment of: JACKMAN J

Date of judgment: 8 December 2023

Date of publication of reasons: 11 December 2023

Catchwords: CORPORATIONS – application for leave pursuant to s 237 of the Corporations Act 2001 (Cth) to take steps to defend proceedings – where the company imminently faces an application for default judgment – where joint directors cannot agree on the appointment of solicitors – whether the scope of the leave granted should be limited – leave granted

Legislation: Corporations Act 2001 (Cth) ss 236, 237 Federal Court Rules 2011 (Cth) r 4.03

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Number of paragraphs: 12

Date of hearing: 8 December 2023

Counsel for the Plaintiff: Mr T O'Brien and Mr H Rogers

Solicitor for the Plaintiff: Polczynski Robinson

Solicitor for the First Defendant: Ms N Craven of Vintage Commercial Law

ORDERS NSD 1483 of 2023

BETWEEN: UTAARIKI MAVE LUCKY Plaintiff

AND: BEN IVES First Defendant

CHIEF TRADE CREDIT INSURANCE PTY LTD ACN 114 867 033 Second Defendant

order made by: JACKMAN J DATE OF ORDER: 8 DECEMBER 2023

THE COURT ORDERS THAT:

1. Grant leave to the plaintiff pursuant to s 237 of the Corporations Act 2001 (Cth) to: (a) appoint Polczynski Robinson as solicitor for the second respondent (Company) on behalf of the Company in Federal Court proceedings number NSD 1063 of 2021 (Marketlend Proceeding) and to instruct Polczynski Robinson to engage junior counsel on behalf of the Company; (b) give instructions on behalf of the Company to Polczynski Robinson to file a Defence in the Marketlend Proceeding in substantially the same form as set out in Schedule A to the originating process filed in this proceeding 7 December 2023; and (c) give instructions on behalf of the Company to seek leave to file a cross-claim in the Marketlend Proceeding in substantially the same form, including any amendment to make allegations concerning the policy for the prior year, as set out in Schedule B to the originating process filed in this proceeding on 7 December 2023. 2. Until further order, grant leave to the plaintiff pursuant to s 237 of the Corporations Act 2001 (Cth) to give instructions on behalf of the Company to Polczynski Robinson concerning the conduct of the conduct of the Company's defence of, and prospective cross-claim in, the Marketlend Proceeding. 3. Until further order, order pursuant to s 242 of the Corporations Act 2001 (Cth) that the Company pay the reasonable costs and expenses incurred in relation to the steps taken in accordance with orders 1 and 2. 4. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), the Court orders that there be no publication or other disclosure of the documents at pages 175 to 179, 199 to 200, 209 to 234, 239 to 257, 262 to 263, 266 to 271 and 274 to 317 of Confidential Exhibit UL-2 to the affidavit of Uta Lucky sworn 6 December 2023, save between the parties to these proceedings, their legal representatives, and the Court, until the final determination of the proceedings numbered NSD 1063 of 2021 and any appeals therefrom. 5. Order that the first respondent pay the costs of and incidental to today's hearing. 6. Grant liberty to the parties to apply to vary or discharge these orders on cause shown on 3 days' notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.