Smith v Starke, in the matter of Action Paintball Games Pty Ltd (in liq) [2015] FCA 311

Smith v Starke, in the matter of Action Paintball Games Pty Ltd (in liq) [2015] FCA 311

The defendants did not provide adequate evidence from any defendant explaining the failure to prosecute the proposed cross-claim or obtain expert evidence earlier, and the solicitor's evidence about financial difficulty was given limited weight. The proposed cross-claim was insufficiently pleaded and appeared to raise untenable causes of action, expert evidence had not been served and was long overdue, and the defendants' delay was not adequately justified. Any prejudice to the defendants was not shown to be unfair rather than the product of their own choices, while the plaintiffs would suffer prejudice from costs thrown away. The interlocutory application was therefore dismissed with costs.

Jurisdiction
Australia
Judgment Date
01 April 2015
Procedural Posture
Interlocutory Application in Corporations Proceeding Concerning Action Paintball Games Pty Ltd (in Liquidation) / Application to Vacate Hearing and for Leave to File Cross Claim Out of Time
Outcome
Interlocutory application dismissed with costs.
Legal Topics
['application to Vacate Hearing' 'leave to File Cross Claim Out of Time' 'late Expert Evidence' 'unreasonable Director Related Transactions' 'case Management']
['practice and Procedure' 'corporations' 'insolvency'] ['application to Vacate Hearing' 'leave to File Cross Claim Out of Time' 'late Expert Evidence' 'unreasonable Director Related Transactions' 'case Management']

Case Brief

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Procedural Posture

Interlocutory Application in Corporations Proceeding Concerning Action Paintball Games Pty Ltd (in Liquidation) / Application to Vacate Hearing and for Leave to File Cross Claim Out of Time

Legal Issues

  1. 1 ['Whether the hearing fixed to commence on 7 April 2015 should be vacated.' 'Whether the defendants should be granted leave to file out of time a cross-claim against the former accountant of the second plaintiff.' "Whether the defendants' asserted financial difficulties and desire to obtain expert evidence justified the late application." 'Whether the defendants or plaintiffs would suffer relevant prejudice if the hearing were or were not vacated.']

Ratio Decidendi

The defendants did not provide adequate evidence from any defendant explaining the failure to prosecute the proposed cross-claim or obtain expert evidence earlier, and the solicitor's evidence about financial difficulty was given limited weight. The proposed cross-claim was insufficiently pleaded and appeared to raise untenable causes of action, expert evidence had not been served and was long overdue, and the defendants' delay was not adequately justified. Any prejudice to the defendants was not shown to be unfair rather than the product of their own choices, while the plaintiffs would suffer prejudice from costs thrown away. The interlocutory application was therefore dismissed with costs.

Court Disposition

Interlocutory application dismissed with costs.

Orders

  • ['The interlocutory application be dismissed with costs.']