In the matter of Galtari Pty Ltd (in liquidation) [2018] NSWSC 2037

In the matter of Galtari Pty Ltd (in liquidation) [2018] NSWSC 2037

Leave should be granted to file the proposed Amended Statement of Claim because the claims are arguable and not so clearly excluded by the operation of Mr Smith’s Personal Insolvency Agreement or bankruptcy provisions that summary dismissal or striking out is warranted. There remains a real question as to whether all or part of the claims are provable debts, and whether any may fall within the fraud exception; those questions are properly for determination at trial.

Jurisdiction
Australia
Judgment Date
14 December 2018
Procedural Posture
Interlocutory Application / Application for Leave to File Amended Statement of Claim
Outcome
Leave to file Amended Statement of Claim granted
Legal Topics
['amendment of Pleadings' "directors' Duties" 'personal Insolvency Agreement' 'provable Debt' 'summary Dismissal' 's 588 M Corporations Act 2001 (cth)']
['corporations Law' 'insolvency Law' 'civil Procedure'] ['amendment of Pleadings' "directors' Duties" 'personal Insolvency Agreement' 'provable Debt' 'summary Dismissal' 's 588 M Corporations Act 2001 (cth)']

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Procedural Posture

Interlocutory Application / Application for Leave to File Amended Statement of Claim

Legal Issues

  1. 1 ['Whether leave should be granted to file the proposed Amended Statement of Claim against the Second Defendant (Mr Smith) in light of his Personal Insolvency Agreement and bankruptcy provisions' "Whether the claims in the proposed amendments are provable debts extinguished by Mr Smith's Personal Insolvency Agreement" 'Whether the claims are properly characterised as liquidated or unliquidated for bankruptcy purposes' 'Whether the fraud exception in s 153 of the Bankruptcy Act 1966 (Cth) can be arguable on the pleadings']

Ratio Decidendi

Leave should be granted to file the proposed Amended Statement of Claim because the claims are arguable and not so clearly excluded by the operation of Mr Smith’s Personal Insolvency Agreement or bankruptcy provisions that summary dismissal or striking out is warranted. There remains a real question as to whether all or part of the claims are provable debts, and whether any may fall within the fraud exception; those questions are properly for determination at trial.

Court Disposition

Leave to file Amended Statement of Claim granted

Orders

  • ['Leave granted to the Plaintiffs to file the proposed Amended Statement of Claim.' "The Second Defendant (Mr Smith) is to pay the Plaintiffs' costs of and incidental to the application to file and serve its Amended Statement of Claim, as agreed or as assessed."]