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Nom De Plume v Ascot Vale Self Storage [No 2] [2020] VSCA 70

Victorian Court of Appeal
McLeish, Niall and Hargrave JJA

Nom De Plume Nominees Pty Ltd (ACN 006 750 090) & Leggo, Richard John v Ascot Vale Self Storage Centre Pty Ltd (Receivers And Managers Appointed) (In Liquidation) (ACN 092 643 939) & Wallace-Smith, Simon (in his capacity as liquidator of Ascot Vale Self Storage Centre P/L (receivers & managers appointed) (in liquidation))

Judgment Date: 
27 March 2020

PRACTICE AND PROCEDURE - Permanent stay - Abuse of process - Agreement for substantial creditor to fund proceeding brought by liquidator - Applications for court approval of previous funding agreements rejected - Operative funding agreement approved by creditors without court application - Whether abuse of process to litigate on basis of funding agreement after court approval of earlier agreements refused - Whether funding agreement compromised liquidator's independence - Provisions requiring funder consent to proceedings and entitling funder to terminate agreement - Liquidator's independence not compromised - Degree of funder control unexceptional and not improper - Clairs Keeley v Treacy (2004) 29 WAR 479, considered - Appeal dismissed.

PRACTICE AND PROCEDURE - Permanent stay - Delay - Whether delay attributable to liquidator's lack of funding and failure to secure court approval of funding agreements - Delay not sole responsibility of liquidator - No actual prejudice - Civil Procedure Act 2010 ss 7, 8, 25.

CORPORATIONS - Liquidation - Litigation funding agreement - Corporations Act 2001 (Cth) s 477(2B) - Whether necessary to seek court approval of agreement after approval refused for two prior agreements - Unnecessary to seek court approval of agreement approved by creditors - No abuse of process in circumstances.