Owners of Strata Plan 5290 v CGS & Co Pty Ltd

(2011) 81 NSWLR 285; [2011] NSWCA 168

NSW Court of Appeal

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Interrogate

Catchwords

1. Corporations
2. › Winding up
3. › Liquidator's powers
4. › Power to sell or dispose of company property
5. › Assignment of choses in action
6. › Whether s 477(2)(c) empowers liquidator to assign chose in action subject to express contractual prohibition on assignment
7. › Corporations Act 2001 (Cth), ss 9, 477(2)(c)
1. Equity
2. › Assignment of choses in action
3. › Non-assignability clauses
4. › Contractual prohibition on assignment
5. › Whether chose in action rendered inherently incapable of assignment by express agreement
6. › Effect of non-assignability clause on liquidator's statutory power of sale
1. Contract
2. › Construction
3. › Non-assignment clauses
4. › Building contracts
5. › Commercial reasons for non-assignability clauses
6. › Whether obligor's contractual rights overridden by liquidator's statutory power

Quick Take

Section 477(2)(c) of the Corporations Act does not empower a liquidator to assign a chose in action that is rendered non-assignable by an express contractual prohibition agreed to by the company and the obligor. The liquidator's statutory power to sell or dispose of the company's property does not extend to transforming the character of property that is inherently incapable of assignment by reason of a valid contractual restriction. This limits the scope of UTSA v Ultra Tune, which held that s 477(2)(c) overrides the public policy restrictions of champerty and maintenance, to cases where the chose in action is otherwise assignable but for those public policy restrictions.