Land Enviro Corp Pty Ltd (In Liq) v HTT Huntley Heritage Pty Ltd

[2017] NSWCA 207

NSW Court of Appeal

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Interrogate

Catchwords

1. Corporations
2. › Receivers and controllers
3. › Powers of receiver
4. › Power to bring proceedings in name of corporation
5. › Whether mortgagee in possession may exercise power under s 420(2)(k) of Corporations Act 2001 (Cth)
6. › Whether person acting as receiver or mortgagee in possession
7. › Corporations Act 2001 (Cth), ss 418, 419, 420
1. Corporations
2. › Charges
3. › Fixed and floating charge
4. › Scope of 'company property'
5. › Whether right to apply to set aside court order constitutes property subject to charge
6. › Whether charge extends to incorporeal rights including things in action
1. Practice and Procedure
2. › Setting aside orders
3. › Order dismissing proceedings for non-attendance
4. › Application under UCPR r 36.16
5. › Standing to bring application
6. › Whether assignee of charge may bring application in name of company in liquidation
7. › Uniform Civil Procedure Rules 2005 (NSW), r 36.16
1. Practice and Procedure
2. › Reinstatement of appeal
3. › Discretion
4. › Delay
5. › Unremedied defaults in payment of costs orders
6. › Conditional reinstatement upon payment of outstanding judgments
7. › Security for costs

Quick Take

A mortgagee in possession may exercise the power under s 420(2)(k) of the Corporations Act 2001 (Cth) to bring proceedings in the name of and on behalf of a company, including an application under UCPR r 36.16 to set aside an order dismissing proceedings. The right to apply under UCPR r 36.16 constitutes 'property' of the company for the purposes of a deed of charge. Causes of action under the Trade Practices Act 1974 (Cth), though incapable of assignment, are capable of being charged to secure an indebtedness. A secured creditor stands outside the liquidation and the power to bring proceedings in the company's name is not affected by the winding up.