Edenden v Bignell [2008] NSWSC 666

Edenden v Bignell [2008] NSWSC 666

The plaintiffs' originating process is embarrassing and must be struck out except as to core elements required by rule 2.3(3); it does not clearly specify the act or event of incurring the debt nor allege insolvency or suspicion thereof at the relevant time. As such, only the minimum requirements for the originating process remain and the matter is to proceed on pleadings, which must be filed within 28 days or the case will stand dismissed.

Jurisdiction
Australia
Judgment Date
02 July 2008
Procedural Posture
Corporations Winding Up Application for Leave to Proceed Under S 588 T(2)(b) Corporations Act 2001 / Interlocutory Application to Strike Out Embarrassing Originating Process
Outcome
Originating process struck out except as to core elements; leave to proceed on pleadings; if no statement of claim is filed within 28 days, proceedings dismissed.
Legal Topics
['insolvent Trading' "leave for Creditor's Action" 'cost Orders' 'pleading Requirements']
['corporations Law' 'insolvency' 'civil Procedure'] ['insolvent Trading' "leave for Creditor's Action" 'cost Orders' 'pleading Requirements']

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Procedural Posture

Corporations Winding Up Application for Leave to Proceed Under S 588 T(2)(b) Corporations Act 2001 / Interlocutory Application to Strike Out Embarrassing Originating Process

Legal Issues

  1. 1 ["Whether the plaintiffs' originating process sufficiently pleads a claim for leave to bring proceedings under s 588T(2)(b) and s 588M(3) of the Corporations Act 2001 for insolvent trading." 'Whether the elements of insolvent trading under s 588G(2) and loss under s 588M(3) are identified.' 'Whether the pleadings specify the relevant debt, its incurrence and insolvency at that time.']

Ratio Decidendi

The plaintiffs' originating process is embarrassing and must be struck out except as to core elements required by rule 2.3(3); it does not clearly specify the act or event of incurring the debt nor allege insolvency or suspicion thereof at the relevant time. As such, only the minimum requirements for the originating process remain and the matter is to proceed on pleadings, which must be filed within 28 days or the case will stand dismissed.

Court Disposition

Originating process struck out except as to core elements; leave to proceed on pleadings; if no statement of claim is filed within 28 days, proceedings dismissed.

Orders

  • ['Leave to file new originating process in specified form with pleaded case omitted.' 'Proceedings to proceed on pleadings.' 'Plaintiffs granted leave to file statement of claim within 28 days.' 'If no statement of claim filed and served within 28 days, proceedings stand dismissed.' 'Directions to be made for...