Generate Group Pty Ltd v Harris

• Jurisdiction: Australia Federal only
• Judgment Date: 08 June 2023
• Neutral Citation: [2023] FCA 605
• Date: 08 June 2023
• Court: Federal Court

Federal Court of Australia

Generate Group Pty Ltd v Harris [2023] FCA 605

File numbers:	NSD 1124 of 2022NSD 196 of 2023
Judgment of:	STEWART J
Date of judgment:	8 June 2023
Catchwords:	CORPORATIONS – where liquidator purported to assign choses in action pursuant to a heads of agreement and deed of assignment – where court approval required under s 477(2B) of the Corporations Act 2001 (Cth) – where assignee commenced proceedings before court approval sought or granted – principles governing retrospective approval – interests of creditors and the proper administration of companies in liquidation ; PRACTICE AND PROCEDURE – summary dismissal –whether assignment without court approval effective as regards third parties – whether proceedings commenced before approval a nullity – effect of granting approval nunc pro tunc
Legislation:	Corporations Act 2001 (Cth) ss 477(2)(d), 477(2B), 506(1)(b), 506(1A)(a), 1322(4)(a) Federal Court (Corporations) Rules 2000 (Cth) r 2.13(1) Federal Court Rules 2011 (Cth) rr 16.53, 16.54
Cases cited:	BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCAFC 138; 226 FCR 240 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541 Byers v Overton Investments Pty Ltd[2001] FCA 760; 109 FCR 554 Corporate Affairs Commission v ASC Timber Pty Ltd (1998) 29 ACSR 109 Deigan v Fussell[2019] NSWCA 299 Empire (Aust) Nominees Pty Ltd v Vince [2000] VSC 324; 35 ACSR 167 Federal Commissioner of Taxation v Kassem[2012] FCAFC 124; 205 FCR 156 Hall v Poolman[2009] NSWCA 64; 75 NSWLR 99 Hamilton, in the matter of ACN 101 634 146 Pty Ltd (in liq) [2014] FCA 687 Hayes, in the matter of Dingham Constructions Pty Ltd (in liq) [2018] FCA 2053 HIH Casualty[2002] NSWSC 1036 Hundy (liquidator), in the matter of 3 Property Group 13 Pty Ltd (in liq)[2022] FCA 1216 In the matter of Golden Sands Hospitality Pty Ltd (in liq) (No 2)[2017] NSWSC 450 In the matter of Kevin Jacobsen Pty Ltd (in liq)[2016] NSWSC 538 In the matter of Octaviar Ltd (in liq)[2015] NSWSC 1621; 110 ACSR 72 In the matter of One.Tel Ltd[2014] NSWSC 457; 99 ACSR 247 Lord Corporation Pty Ltd v Green (1991) 22 NSWLR 532 Martin Bruce Jones as liquidator of Forge Group Ltd (recs and mgrs. apptd) (in liq) v Sun Engineering (Qld) Pty Ltd [2017] WASC 195 Re Ambient Rail Pty Ltd (in liq); Ex parte Tonks[2019] FCA 1556 Read, in the matter of Forestview Nominees Pty Ltd[2007] FCA 1985; 164 FCR 237 Rolfe v Investec Bank (Aust) Ltd [2014] VSCA 38 Stewart, in the matter of Newtronics Pty Ltd[2007] FCA 1375 Stone v ACE-IRM Insurance Broking Pty Ltd [2003] QCA 218; [2004] 1 Qd R 173 Williams v Spautz[1992] HCA 34; 174 CLR 509
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	79
Date of hearing:	30 May 2023
Counsel for the Plaintiff in NSD1124/2022	B Lloyd
Solicitor for the Plaintiff in NSD1124/2022	Swaab Attorneys
Counsel for the First, Second and Fifth Defendants in NSD1124/2022	N Kabilafkas
Solicitor for the First, Second and Fifth Defendants in NSD1124/2022	Wilson & Co Lawyers
Counsel for the Third, Fourth and Sixth Defendants in NSD1124/2022	S B Docker and J Li
Solicitor for the Third, Fourth and Sixth Defendants in NSD1124/2022	Thomson Geer
Counsel for the Plaintiffs in NSD196/2023	J Parrish
Solicitor for the Plaintiffs in NSD196/2023	Maddocks

ORDERS

		NSD 1124 of 2022
BETWEEN:	GENERATE GROUP PTY LTD ACN 702 667 228 Plaintiff
AND:	GREGORY JOHN HARRIS First Defendant ; MARK ANDREW GRIFFITHS Second Defendant ; SINT PTY LTD ACN 135 128 237 (and others named in the Schedule) Third Defendant

order made by:	STEWART J
DATE OF ORDER:	8 JUNE 2023

THE COURT ORDERS THAT:

1. The interlocutory application by the third, fourth and sixth defendants lodged for filing on 17 March 2023 be dismissed.

2. The interlocutory application by the first, second and fifth defendants lodged for filing on 29 March 2023 be dismissed.

3. The costs of the interlocutory applications referred to in orders 1 and 2 be reserved.

4. Sandra Drew and Secom Technology Pty Ltd ACN 161 035 276 be joined as the seventh and eighth defendants respectively.

5. Within seven days of these orders, the plaintiff file and serve an amended originating process giving effect to the joinder referred to in order 4 and a statement of claim.

6. The parties jointly arrange a listing for further case management and the hearing of submissions on the reserved costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

		NSD 196 of 2023
BETWEEN:	MALI AGNES KAINONA THAGGARD IN HER CAPACITY AS LIQUIDATOR OF SEA-TECH AUTOMATION PTY LTD (IN LIQUIDATION) ACN 003 916 434 First Plaintiff ; SEA-TECH AUTOMATION PTY LTD (IN LIQUIDATION) ACN 003 916 434 Second Plaintiff
AND:	GREGORY JOHN HARRIS First Interested Person ; MARK ANDREW GRIFFITHS Second Interested Person ; SEA-TECH SYSTEMS PTY LTD ACN 614 267 140 (and others named in the Schedule) Third Interested Person

order made by:	STEWART J
DATE OF ORDER:	8 JUNE 2023

THE COURT ORDERS THAT:

1. Pursuant to s 477(2B) of the Corporations Act 2001 (Cth), the plaintiffs be authorised nunc pro tunc to enter into:

   1. the heads of agreement dated 5 December 2022, a copy of which is at tab 5 of exhibit MT-1 to the affidavit of Mali Agnes Kainona Thaggard affirmed on 28 February 2023; and

   2. the deed of assignment dated 9 December 2022, a copy of which is at tab 6 of exhibit MT-1 to the affidavit of Mali Agnes Kainona Thaggard affirmed on 28 February 2023.

2. The costs be reserved.

3. The plaintiffs and interested parties jointly arrange a listing, with a listing in NSD1124/2022, for hearing submissions on costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

Introduction

1. There are several applications in two separate proceedings before me. In the one proceeding (NSD196/2023), the liquidator of Sea-Tech Automation Pty Ltd seeks approval, nunc pro tunc, under s 477(2B) of the Corporations Act 2001 (Cth) of her entry into a heads of agreement and deed of assignment with Generate Group Pty Ltd in terms of which she assigned various claims of Sea-Tech to Generate. The...