Devine v Liu; Devine v Ho [2018] NSWSC 1453

Devine v Liu; Devine v Ho [2018] NSWSC 1453

The existing and proposed amended statements of claim are inadequate for failing to specifically plead how and when the company incurred relevant debts, particularly in respect of Standard Constructions and employee claims; particulars of insolvency relying on presumed insolvency are insufficiently particularised. The pleading is struck out, leave to re-plead is granted subject to payment of costs. Applications for security for costs are dismissed because there is no reason to believe the liquidator cannot meet adverse costs orders and company and liquidator are co-plaintiffs; costs follow the event.

Parties
First Plaintiff: Trent Andrew Devine; Second Plaintiff: Palace Memories Pty Ltd (in liquidation); First Defendant: Tony Liu; Fourth Defendant: Judia Ling Suet Ho
Jurisdiction
Australia
Judgment Date
28 September 2018
Procedural Posture
Interlocutory Applications in Two Proceedings Under the Corporations Act 2001 (cth) / Ruling on Applications to Amend, Strike Out, Transfer Proceedings and for Security for Costs
Outcome
Statement of claim struck out; leave to re-plead granted. Applications for security for costs dismissed.
Legal Topics
Directors' Duty, Insolvent Trading, Voidable Transactions, Security for Costs, Pleadings, Costs, Liquidator's Liability
Corporate Law Civil Procedure Equity Directors' Duty Insolvent Trading Voidable Transactions Security for Costs Pleadings +2 more

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Parties

Trent Andrew Devine

First Plaintiff

Palace Memories Pty Ltd (in liquidation)

Second Plaintiff

Tony Liu

First Defendant

Judia Ling Suet Ho

Fourth Defendant

Procedural Posture

Interlocutory Applications in Two Proceedings Under the Corporations Act 2001 (cth) / Ruling on Applications to Amend, Strike Out, Transfer Proceedings and for Security for Costs

Legal Issues

  1. 1 Whether the pleadings in the statement of claim adequately set out how and when the company incurred relevant debts
  2. 2 Whether sufficient particulars of insolvency and reliance on statutory presumptions were pleaded
  3. 3 Whether leave should be granted to amend the statement of claim

Ratio Decidendi

The existing and proposed amended statements of claim are inadequate for failing to specifically plead how and when the company incurred relevant debts, particularly in respect of Standard Constructions and employee claims; particulars of insolvency relying on presumed insolvency are insufficiently particularised. The pleading is struck out, leave to re-plead is granted subject to payment of costs. Applications for security for costs are dismissed because there is no reason to believe the liquidator cannot meet adverse costs orders and company and liquidator are co-plaintiffs; costs follow the event.

Court Disposition

Statement of claim struck out; leave to re-plead granted. Applications for security for costs dismissed.

Orders

  • Within 21 days the defendants bring in short minutes of order giving effect to judgment and providing for directions if disagreement as to form of order.
  • Plaintiffs' application to amend statement of claim dismissed.