Federal Court of Australia

Pleash (Liquidator), in the matter of SFG Relocations Pty Ltd v Fourie (No 2) [2024] FCA 182

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 471B of the Corporations Act 2001 (Cth) the plaintiff have leave to proceed with the claims against Watchman Holdings Pty Ltd ACN 632 703 336 (in Liquidation) set out in the plaintiff’s further amended originating process and further amended points of claim dated 23 January 2023.

2.    The costs of the interlocutory application be costs in the cause of the principal proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(delivered ex tempore)

STEWART J:

1    By an interlocutory process, the plaintiff seeks leave pursuant to s 471B of the Corporations Act 2001 (Cth) to proceed with its claims against the third defendant, Watchman Holdings Pty Ltd (in liquidation) – which I will refer to as Watchman. The plaintiff is the liquidator of SFG Relocation Pty Ltd (in liquidation) which I shall refer to as the company.

2    In the substantive case, the plaintiff seeks proprietary relief as well as other relief in relation to certain trademarks he claims were unlawfully removed from the company and transferred, first to Watchman and then to EW1892 Pty Ltd, the fourth defendant, a company that is controlled by Mr Fourie, the first defendant. It is alleged that Watchman was the conduit through which the trademarks were unlawfully conveyed.

3    The matter is listed for trial on 15 to 18 April 2024. Watchman went into liquidation on 22 September 2023.

4    The defendants, including the liquidators of Watchman, are unrepresented. They have not appeared to oppose the leave that is sought, nor have they indicated any such opposition. The principles concerning leave to proceed against a company in liquidation are well-established.

5    A person who seeks leave must demonstrate that there is a real dispute in relation to which leave is sought and that there is a good reason why it is not appropriate for a proof of debt to be lodged. In Chahwan v Euphoric Pty Ltd [2006] NSWSC 1002 at [40], Barrett J held that courts will usually grant leave in circumstances where the applicant seeks proprietary remedies, because such remedies cannot be accommodated in the proof of debt regime.

6    I am satisfied that I should exercise my discretion in favour of granting the plaintiff leave to continue the proceeding against Watchman. There are a number of reasons for that, as submitted by Mr Afshar for the plaintiff, but the overwhelming reason is that proprietary relief is sought which – as mentioned – cannot be accommodated in the proof of debt regime. Leave should therefore be granted.

Associate:

Dated:    4 March 2024

SCHEDULE OF PARTIES