Jakovich vs. 3 Mood design Pty Ltd. - (25 Aug 2022)

After passing of resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court

Commercial

Present is an application made pursuant to Section 500(2) of the Corporations Act, 2001. The Plaintiff seeks to be granted leave nunc pro tunc to proceed with an action in the State Administrative Tribunal referred under the Building Services (Complaint Resolution and Administration) Act, 2011 (WA) (the SAT proceedings).

Section 500(2) of the Corporations Act, 2001 provides that after the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes. Leave to proceed against the defendant for the purposes of obtaining access to documents would not affect the administration of the winding up of the company or prejudice the other creditors.

Granting leave would enable Mr. Jakovich to apply to the Tribunal for orders concerning the conduct of the proceedings including the production of documents as it sees fit under Section 32 or Section 34 of the State Administrative Tribunal Act, 2004. Leave may not be strictly necessary to obtain production of documents under a subpoena. However, rather than invite further argument as to whether that is the case and the difficulties to which Mr. Jakovich deposes in obtaining documents from the liquidator, present Court is satisfied Mr. Jakovich requires this Court's assistance to facilitate the bringing of an action against the defendant to enable him to seek orders to compel the production of documents in the SAT proceedings.

Pursuant to Section 500(2) of the Corporations Act, 2001, the Plaintiff has leave to proceed nunc pro tunc against the Defendant, 3 Moon Design Pty Ltd (in liq) in the proceedings in the State Administrative Tribunal on condition that: (a) any costs order not be sought or made against the defendant; and (b) any other monetary order is not enforced against the Defendant.

Tags : VOLUNTARY WINDING UP PROCEEDING LEAVE OF COURT