Milner v Bowmans Australia [2009] NSWSC 779 (3 August 2009)

Last Updated: 10 August 2009

NEW SOUTH WALES SUPREME COURT

CITATION:
Milner v Bowmans Australia [2009] NSWSC 779


JURISDICTION:
Equity

FILE NUMBER(S):
2511/07

HEARING DATE(S):
3 August 2009

JUDGMENT DATE:
3 August 2009

EX TEMPORE DATE:
3 August 2009

PARTIES:
Stephen James Milner
v
Bowmans Australia Pty Ltd

JUDGMENT OF:
White J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
Applicant: S McDonald (solr)

SOLICITORS:
Applicant: S McDonald Solicitors


CATCHWORDS:
Leave to proceed against company in liquidation refused - no question of principle

LEGISLATION CITED:
Corporations Act 2001 (Cth)


CASES CITED:


TEXTS CITED:


DECISION:
Order that the interlocutory process filed 30 July 2009 be dismissed. Make no order for costs on the application.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST


WHITE J

Monday, 3 August 2009


2511/07 Stephen James Milner v Bowmans Australia Pty Ltd

JUDGMENT

1 HIS HONOUR: The applicant seeks leave to proceed with the proceedings bought in the Local Court against the respondent which is a company in liquidation.

2 The members of the company resolved on 20 May 2009 that the company be wound up voluntarily.

3 The proceedings brought by the applicant against the company in the Local Court are stayed pursuant to s 500(2) of the Corporations Act 2001 (Cth).

4 The applicant seeks leave pursuant to that provision to proceed against the company in that court.

5 The general principle is that upon a company going into liquidation claims against it should be dealt with by the liquidator through the process of submission and adjudication on proofs of debt. Such administrative proceedings are at least generally more expeditious and cheaper than proceeding with litigation.

6 I am told that the applicant has lodged a proof of debt with the liquidator but that proof has not yet been ruled on. I do not understand that steps have been taken by the applicant to require the liquidator to deal with the proof of debt. The liquidator says at the moment he is without funds.

7 Nothing has been put which warrants departure from the usual position that claims against the company in liquidation should be dealt with by the liquidator, and any dispute in relation to the liquidator's adjudication on the claim being dealt with by way of an appeal against his refusal, indeed allowance, of the proof of debt.

8 For these reasons I order that the interlocutory process filed on 30 July 2009 be dismissed.

9 The liquidator has not appeared at the hearing. He said he had no objection to the application being heard, but said he would not be represented. It does not appear to me that the liquidator would have incurred any costs in respect of the application. He did not appear to ask for such costs.

10 I make no order for costs on the application.

******

LAST UPDATED:
6 August 2009