Carazi Pty Ltd v Blow Dry Bar Franchising Pty Limited (in liq) & Anor [2015] NSWSC 28

Supreme Court New South Wales

Medium Neutral Citation: Carazi Pty Ltd v Blow Dry Bar Franchising Pty Limited (in liq) & Anor [2015] NSWSC 28 Hearing dates: 2 February 2015 Date of orders: 02 February 2015 Decision date: 02 February 2015 Jurisdiction: Equity Division Before: White J Decision: Order pursuant to s 500(2) of the Corporations Act 2001 (Cth) that the proceeding against the first defendant may be proceeded with. Catchwords: BANKRUPTCY – practice and procedure – whether proceeding against the second defendant is stayed under s 58(3) of the Bankruptcy Act 1966 (Cth) – plaintiff claims, among other things, that the second defendant, a bankrupt, engaged in misleading or deceptive conduct which induced the plaintiff to enter a contract with the first defendant – held that the proceeding is not "in respect of a provable debt" within s 58(3) and the plaintiff therefore does not require leave to proceed against the second defendant

INSOLVENCY – practice and procedure – application by plaintiff for leave to proceed against the first defendant, a company in liquidation, under s 500 of the Corporations Act 2001 (Cth) – whether leave to proceed should be granted where the plaintiff is able to proceed against the second defendant, the sole director of the first defendant, in any event – held, granting leave to proceed against the first defendant, that it would be a waste of resources if any judgment obtained against the second defendant would not be binding against the first defendant and that it is desirable that both defendants be bound by any findings Legislation Cited: Australian Consumer Law Bankruptcy Act 1966 (Cth) Corporations Act 2001 (Cth) Trade Practices Act 1974 (Cth) Cases Cited: CCA Systems Pty Ltd v Communications & Peripherals (Australia) Pty Ltd (1989) 15 ACLR 720 Reid v Interarch Australia Pty Ltd [2000] FCA 1328 Australian Competition and Consumer Commission v Kritharas [2000] FCA 1442; (2000) 105 FCR 444 Australian Competition and Consumer Commission v Black on White Pty Ltd [2004] FCA 363; (2004) 138 FCR 314 Director General, Department of Services, Technology & Administration v Veall (No 6) [2012] NSWSC 1118 Aliferis v Kyriacou [2000] VSCA 123; (2000) 1 VR 447 Coventry v Charter Pacific Corporation Limited [2005] HCA 67; (2005) 227 CLR 234 Category: Procedural and other rulings Parties: Carazi Pty Ltd (Plaintiff) Blow Dry Bar Franchising Pty Limited (in liq) (1st Defendant) Nathan Cuneen (a bankrupt) (2nd Defendant) Representation: Counsel: G Sirtes SC with D Moujalli (Plaintiff)