Lucky v Ives (No 2) [2024] FCA 970

FEDERAL COURT OF AUSTRALIA

Lucky v Ives (No 2) [2024] FCA 970 File number: NSD 1483 of 2023

Judgment of: JACKMAN J

Date of judgment: 22 August 2024

Catchwords: CORPORATIONS – application to vary orders granting leave to take steps to defend proceedings on behalf of company – whether solicitor acting for company should be substituted – whether order should be varied to provide Mr Ives rather than Mr Lucky with leave to provide instructions

Legislation: Corporations Act 2001 (Cth) s 237

Cases cited: Lucky v Ives [2023] FCA 1571

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Number of paragraphs: 9

Date of hearing: 22 August 2024

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

Solicitor for the Plaintiff: Polczynski Robinson

Counsel for the First Defendant: Mr Andrew W Smith

Solicitor for the First Defendant: Resolve Litigation Lawyers

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: 22 August 2024

THE COURT ORDERS THAT:

1. Order 2 made on 8 December 2023 be varied so as to grant leave to the plaintiff, pursuant to s 237 of the Corporations Act 2001 (Cth): (a) to appoint Samantha Peterson of McLachlan Thorpe Partners as solicitor for the second defendant (Company) on behalf of the Company in both of the Federal Court proceedings numbered NSD1063/2021 and NSD919/2022 (together, the Marketlend Proceedings); (b) to instruct Samantha Peterson of McLachlan Thorpe Partners to engage counsel, or to continue to engage existing counsel, on behalf of the Company; and (c) until further order to give instructions to Samantha Peterson of McLachlan Thorpe Partners concerning the conduct of Chief's defence of and the making and conduct of any cross-claims in the Marketlend Proceedings. 2. Pursuant to s 242 of the Corporations Act 2001 (Cth), the Company pay: (a) the reasonable costs and expenses incurred in relation to the steps taken in accordance with order 2, made on 8 December 2023, as varied by these orders; (b) the amount of $60,000 into the trust account of McLachlan Thorpe Partners on account of anticipated costs and expenses. 3. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), until further order, there be no publication or other disclosure of paras 10–13 of the second affidavit of Richard Alexander Lyne, dated 21 August 2024, and its annexures marked A and B, and annexures BI-5, 9, 10, 22, 27, and 29 to the affidavit of Ben John Ives, affirmed on 13 August 2024, and annexures HCH-4, 6, 11, and 17 to the affidavit of Hugo Chisholm Hosie of 21 August 2024, other than between the parties to these proceedings, their legal representatives and the Court. 4. The hearing of paragraph 6 of the first defendant's interlocutory application be stood over to 9.30 am on 10 September 2024. 5. Each party pay its own costs of the first defendant's interlocutory application, except for costs incurred in relation to paragraph 6, which I will determine on 10 September 2024. 6. The first defendant's interlocutory application otherwise be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.