Aardwolf v Tayeh [2020] NSWSC 299

“Sue a liquidator? First, get through us.”

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The liquidators of 2 Cos entered into a deed with a 3rd party. The deed assigned trade marks the liquidators thought the Cos owned: [38], [39]

The Ps said the liquidated Cos did not own the marks, having previously abandoned them: [64]

Common law rights in the abandoned marks arose, meaning other parties owned them: [74]

The Ps sued the liquidators alleging loss from the Cos assigning marks they didn’t own.   To sue a liquidator, you need the Court’s consent: [81]

The negligence claim failed as the Ps were found not to be vulnerable. It was in their power to clarify the ownership position for the liquidators, but chose not to: [104]

The misleading and deceptive conduct claim failed as the sale was not entered into *by the liquidators* “in trade and commerce”: [121]

Nor did the Ps establish their own reliance on the representations in the deed, instead “relying” on the 3rd party’s reliance; an intriguing proposition: [125]   Further: the Dirs of the liquidated Cos, who were also Dirs of the Ps (!) breached their duties to assist the liquidators, provided inadequate information, and engaged in “phoenix-like” conduct: [129]

For the above reasons, the claim failed. Costs followed: [130]