Liquidator's power to sell chose in action: non-assignability clause

A recent NSW Court of Appeal case, Owners of Strata Plan 5290 v CGS & Co Pty Ltd [2011] NSWCA 168, dealt with whether a liquidator can sell a chose in action arising out of a contract containing an express restriction on assignment.

The court held that s477(2)(c) of the Corporations Act does not empower a liquidator to assign a chose in action that arose under a contract containing a non-assignability clause.

This case illustrates that although s477(2)(c) empowers a liquidator to sell 'the property of the company', which includes 'a thing in action', the words of the Act do not override an express agreement to the effect that a property is not assignable.