Welcome to today’s Chamberlains Selection, where we will discuss with James d’Apice on the matter of Aardwolf [2020] NSWSC 299. We will talk about liquidators who acted in a misleading manner after entering a deed with a third party.

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]