Is appointing court leave required to sue a court-appointed liquidator?

In November 2020, the NSW Court of Appeal dismissed an appeal seeking to overturn a decision refusing the applicants leave to commence proceedings against a court-appointed liquidator (Aardwolf Industries LLC v Tayeh). And despite the parties commonly agreeing leave was required, Leeming JA nevertheless questioned whether this was in fact correct, making in obiter remarks “lest they be overlooked in later cases”. Given the preceding and noting an article published in 2011 suggesting it is “plainly wrong” for intermediate courts to insist on appointing court leave before a person with standing (albeit not a “person aggrieved”) can pursue proceedings against a liquidator, this article finds the widely applied prerequisite of appointing court leave is a non-concurrent state law that is not picked up by either s 79 or s 80 of the Judiciary Act 1903 (Cth). As will appear, it is inconsistent with s 599 of the Corporations Act 2001 (Cth), diminishing the right of a person aggrieved by the conduct of a liquidator to commence proceedings against them and stultifying exercise of federal judicial power