Morgan v McMillan Investment Holdings Pty Ltd [2024] HCA 33

HIGH COURT OF AUSTRALIA

GAGELER CJ,

EDELMAN, STEWARD, GLEESON AND BEECH‑JONES JJ

JOHN MAXWELL MORGAN & ORS APPELLANTS

AND

McMILLAN INVESTMENT HOLDINGS

PTY LTD & ANOR RESPONDENTS

Morgan v McMillan Investment Holdings Pty Ltd

[2024] HCA 33

Date of Hearing: 12 June 2024

Date of Judgment: 11 September 2024

S119/2023

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

M R Pesman SC with M L Rose for the appellants (instructed by ERA Legal)

B W Walker SC with J T Svehla for the first respondent (instructed by Somerset Ryckmans)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Morgan v McMillan Investment Holdings Pty Ltd

Companies – Winding up – Insolvency – Appeal against making of pooling order under s 579E(1) of Corporations Act 2001 (Cth) – Whether gateway requirement in s 579E(1)(b)(iv) for making of pooling order satisfied – Whether alleged chose in action owned jointly and severally by two companies is particular property used, or for use, in connection with joint business, scheme or undertaking – Whether alleged chose in action is used or available for use by two or more companies – Whether alleged chose in action concerning sale agreement for disposal of joint business has sufficient connection to undertaking or carrying out of joint business – Whether alleged chose in action arose upon entry into sale agreement – Where company reinstated after deregistration – Whether s 601AH(5) of Corporations Act deems company to have undertaken activities during period of deregistration.

Words and phrases – "carrying on of the joint business, scheme or undertaking", "chose in action", "deregistration", "gateway requirement", "group of 2 or more companies", "joint ownership or operation of property", "just and equitable", "material disadvantage to any eligible unsecured creditor", "money had and received", "necessary connection", "ownership or operation of any asset jointly or for joint benefit", "particular property", "pooling order", "reinstatement", "sufficient connection".