David Chesterman KC (leading T C Webb) appeared for the second and third defendants, instructed by Lander & Rogers.
The hearing concerned applications by the plaintiff for leave nunc pro tunc under ss 471B and 500 of the Corporations Act 2001 (Cth) to commence and continue proceedings against companies in external administration, to join additional defendants, amend the statement of claim, and for interlocutory relief, together with applications by the defendants for summary judgment or strike‑out. The substantive claims alleged invalid termination of an asset sale agreement and negligence by receivers and liquidators in connection with failure to procure releases of secured encumbrances.
The Court held that the plaintiff had not established a prima facie case or a serious question to be tried. Termination of the asset sale agreement occurred in accordance with the express terms of a subsequent extension, release and termination agreement, following the plaintiff’s failure to make a required completion payment. Any alleged earlier failure by the defendants to obtain releases of encumbrances did not cause the termination, and the negligence claim failed for want of duty, causation, and recoverable loss. Further, the claims were barred by contractual exclusions and releases, including an exclusion of liability for economic loss.
The Court ultimately refused leave to commence or continue proceedings, declined joinder and amendment, and entered summary judgment for the first, second and third defendants.
The judgment can be read by clicking here
