DCM Solar Pty Ltd (in Liquidation) v Marjoribanks [2013] NSWSC 855

DCM Solar Pty Ltd (in Liquidation) v Marjoribanks [2013] NSWSC 855

In the unusual circumstances, the first, fourth and sixth defendants should clarify their pleading and serve evidence concerning the relevant payments, and exceptional circumstances existed under Practice Note SC Eq 11 requiring disclosure now, because that course would clarify whether the liquidators could appropriately proceed against Sanctuary Energy by adopting Mr Marjoribanks' allegations and because the material suggested Sanctuary Energy may be party to relevant agreements and that Mr Alex Brasier may have been involved on behalf of relevant defendants.

Jurisdiction
Australia
Judgment Date
25 June 2013
Procedural Posture
Interlocutory Applications / Application Concerning Amendment of Commercial List Statement, Further Commercial List Response, Service of Evidence and Disclosure
Outcome
First, fourth and sixth defendants directed to file a further list response and serve evidence; first, fourth, fifth and sixth defendants directed to make disclosure; proceedings and balance of motion adjourned; costs reserved.
Legal Topics
['amendment of Commercial List Response' 'service of Evidence' 'disclosure Under Practice Note SC Eq 11' 'liquidator Recovery Proceedings' 'pt 5.7 B of the Corporations Act 2001 (cth)']
['practice and Procedure' 'corporations'] ['amendment of Commercial List Response' 'service of Evidence' 'disclosure Under Practice Note SC Eq 11' 'liquidator Recovery Proceedings' 'pt 5.7 B of the Corporations Act 2001 (cth)']

Case Brief

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Procedural Posture

Interlocutory Applications / Application Concerning Amendment of Commercial List Statement, Further Commercial List Response, Service of Evidence and Disclosure

Legal Issues

  1. 1 ['Whether the plaintiff should be given leave to make proposed amendments to the Commercial List Statement against Sanctuary Energy.' 'Whether the liquidator should be permitted to make allegations based on allegations by Mr Marjoribanks where the liquidator cannot verify their correctness.' 'Whether the first, fourth and sixth defendants should file a further list response and serve evidence concerning the payments pleaded in subparagraph 33(b).' 'Whether exceptional circumstances existed under Practice Note SC Eq 11 necessitating disclosure before all evidence had been served.' 'Whether disclosure should be ordered from the first, fourth, fifth and sixth defendants.']

Ratio Decidendi

In the unusual circumstances, the first, fourth and sixth defendants should clarify their pleading and serve evidence concerning the relevant payments, and exceptional circumstances existed under Practice Note SC Eq 11 requiring disclosure now, because that course would clarify whether the liquidators could appropriately proceed against Sanctuary Energy by adopting Mr Marjoribanks' allegations and because the material suggested Sanctuary Energy may be party to relevant agreements and that Mr Alex Brasier may have been involved on behalf of relevant defendants.

Court Disposition

First, fourth and sixth defendants directed to file a further list response and serve evidence; first, fourth, fifth and sixth defendants directed to make disclosure; proceedings and balance of motion adjourned; costs reserved.

Orders

  • ['Direct that the first, fourth and sixth defendants file a further list response dealing with the four payments referred to in subparagraphs 33(b)(i)(ii)(vii) and (x) of the Joint Commercial List Response of 15 March 2013 by 5 July 2013.' 'Direct that the first, fourth and sixth defendants serve all evidence on...