Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher & Barnet (as liquidators of Octaviar Administration Pty Ltd (in Liq) & Ors [2015] NSWCA 85

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher & Barnet (as liquidators of Octaviar Administration Pty Ltd (in Liq) & Ors [2015] NSWCA 85 Hearing dates: 4 December 2014 Decision date: 08 April 2015 Before: Bathurst CJ at [1]; Beazley P at [143]; Macfarlan JA at [144]; Meagher JA at [145]; Barrett JA at [146] Decision: 1. Grant the applicant leave to appeal. 2. Appeal allowed. 3. Set aside orders (a) and (e) made by the primary judge on 30 March 2012. 4. Remit the matter to the primary judge for further consideration. 5. Order the respondents pay the applicant's costs of the application for leave to appeal and the appeal. Catchwords: Appeal - leave to appeal – standing - non-party who is aggrieved or sufficiently interested in proceedings – person who is the target of a litigation funding agreement – where proceedings have the potential to diminish the value of a debt due to a person

Corporations – joint liquidators – powers of liquidator - application pursuant to s 477(2B) Corporations Act 2001 (Cth) for approval to enter into a litigation funding agreement – factors relevant to approval – whether agreement necessary for the winding-up of the affairs and distribution of property of the funding company under s 477(2)(m) Corporations Act 2001 (Cth)

Appeal – error in exercise of discretion – miscarriage of discretion – remission of matter to primary judge Legislation Cited: Corporations Act 2001 (Cth) Corporations Regulations 2001 (Cth) Federal Court Act 1976 (Cth) Supreme Court Act 1970 (NSW) Trustee Act 1925 (NSW) Workplace Relations Act 1996 (Cth) Cases Cited: Ashby v Slipper [2014] FCAFC 15; 219 FCR 322 Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2002] FCAFC 386; 125 FCR 529 Australian Securities Commission v Marlborough Gold Mines Limited [1993] HCA 15; 177 CLR 485 Citicorp Australia Ltd v Official Trustee in Bankruptcy (1996) 71 FCR 550 Commonwealth of Australia v Construction, Forestry, Mining and Engineering Union [2000] FCA 453; 98 FCR 31 Cuthbertson v The Mayor, Aldermen and Citizens of the City of Hobart (1921) 30 CLR 16 Deloughery v Weston [2010] NSWCA 148; 79 ACSR 180 Derwinto Pty Ltd (In liq) v Lewis [2002] NSWSC 731; 42 ACSR 645 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 Fletcher and Barnet, in the matter of Octaviar Limited (Receivers and Managers Appointed) (In Liq) and Octaviar Administration Pty Ltd (In Liq) (No 2) [2011] FCA 315 Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2011] FCAFC 89; 281 ALR 38 Gye v McIntyre [1991] HCA 60; 171 CLR 609 Letten v Templeton [2014] FCAFC 131 Mamone v Pantzer [2001] NSWSC 26; 36 ACSR 743 Public Trustee (Qld) v Fortress Credit Corporation (Australia) II Pty Ltd [2010] HCA 29; 241 CLR 286 Re HIH Insurance Ltd [2004] NSWSC 5 Re Magic Aust Pty Ltd (in liq) (1992) 7 ACSR 742 Re McGrath (as liquidators of HIH Insurance Ltd) [2009] NSWSC 1244 Re McGrath (in their capacity as liquidators of HIH Insurance Ltd) [2010] NSWSC 404; 266 ALR 642 Re Siromath (1991) 9 ACLC 1580 Re Spedley Securities Ltd (in liq) (1992) 9 ACSR 83 Re St Gregory's Armenian School (in Liq) [2012] NSWSC 1215; 92 ACSR 588 Stein v Blake [1996] AC 243 Sydlow Pty Ltd (in Liq) v TG Kotselas Pty Ltd (1996) 65 FCR 234 Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; 169 CLR 332 Weston v Publishing & Broadcasting Ltd [2011] NSWSC 14 Witness v Marsden [2000] NSWCA 52; 49 NSWLR 429 Category: Principal judgment Parties: Fortress Credit Corporation (Australia) II Pty Ltd (Applicant) William John Fletcher and Katherine Elizabeth Barnet (First respondent) Octaviar Administration Pty Limited (In Liquidation) (Second respondent) Representation: Counsel: N C Hutley SC / C N Bova (Applicant) B A J Coles QC / S Aspinall / J K Taylor (First and second respondent)