BDO Corporate Finance (Qld) Ltd v Russell

[2019] QCA 39

Queensland Court of Appeal

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Interrogate

Catchwords

1. Corporations
2. › Winding up
3. › Company in liquidation
4. › Standing to bring proceedings in company's name
5. › Former director
6. › Whether former director who is not member, creditor or established prospective creditor has standing
7. › Inherent power of court to authorise use of company's name
8. › Corporations Act 2001 (Cth), ss 206B, 236(1)(a), 237
1. Corporations
2. › Winding up
3. › Company in liquidation
4. › Statutory derivative action
5. › Whether Part 2F.1A Corporations Act 2001 (Cth) applies to company in liquidation
6. › Corporations Act 2001 (Cth), ss 236(1)(a), 237
1. Corporations
2. › Winding up
3. › Company in liquidation
4. › Inherent power to authorise creditor or member to sue in company's name
5. › Whether power extends to guarantor
6. › Factors relevant to exercise of discretion
7. › Whether guarantor who has not paid out guarantee is prospective creditor
1. Practice and Procedure
2. › Striking out
3. › Notice of appeal and application
4. › Whether vexatious and abuse of process
5. › Whether notice of appeal fails to state briefly and specifically the grounds of appeal
6. › UCPR r 371(2)(a), r 747(1)(b)

Quick Take

Part 2F.1A of the Corporations Act 2001 (Cth) does not apply to companies in liquidation, following Chahwan v Euphoric. A person claiming to be a guarantor of a company debt must adduce sufficient evidence of the guarantee's existence and enforceability to establish status as a prospective creditor before the court will consider authorising proceedings in the company's name. The inherent power to authorise use of a company's name is confined to members, creditors and prospective creditors, and the discretion will not be exercised where the company is hopelessly insolvent, there is extraordinary delay, and the applicant is disqualified from managing corporations.