In the matter of Force Corp Pty Limited (receivers and managers appointed) (in liquidation) [2018] NSWSC 1919

In the matter of Force Corp Pty Limited (receivers and managers appointed) (in liquidation) [2018] NSWSC 1919

Although there was substantial overlap between the solvency issues in the Preference Proceedings and the Insolvent Trading Proceedings, the proposed orders were not shown to promote the just, quick and cheap resolution of the real issues. The one-way evidentiary proposal would require the judge hearing both matters to consider evidence in the Insolvent Trading Proceedings for the Preference Proceedings but exclude evidence led in the Preference Proceedings from the Insolvent Trading Proceedings, creating complexity, an impractical burden of compartmentalisation, and even a risk of inconsistent findings by the same judge. The application for the separate question order was therefore...

Jurisdiction
Australia
Judgment Date
27 November 2018
Procedural Posture
Equity Corporations List; Interlocutory Application Concerning Practice and Procedure in Preference Proceedings and Related Insolvent Trading Proceedings / Amended Interlocutory Process for Determination of Solvency as a Separate Question and Related Case Management Orders
Outcome
The application for determination of the question of solvency of the First Plaintiff as a separate question in the Preference Proceedings to be heard together with the Insolvent Trading Proceedings was dismissed.
Legal Topics
['separate Determination of Questions' 'case Management' 'preference Proceedings' 'insolvent Trading Proceedings' 'solvency' 'voidable Transactions' 'presumption Under S 588 E of the Corporations Act 2001 (cth)' 'costs of Interlocutory Application']
['practice and Procedure' 'corporations' 'insolvency'] ['separate Determination of Questions' 'case Management' 'preference Proceedings' 'insolvent Trading Proceedings' 'solvency' 'voidable Transactions' 'presumption Under S 588 E of the Corporations Act 2001 (cth)' 'costs of Interlocutory Application']

Case Brief

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Procedural Posture

Equity Corporations List; Interlocutory Application Concerning Practice and Procedure in Preference Proceedings and Related Insolvent Trading Proceedings / Amended Interlocutory Process for Determination of Solvency as a Separate Question and Related Case Management Orders

Legal Issues

  1. 1 ['Whether the solvency of Force Corp Pty Limited between 15 January 2015 and 15 July 2015 should be determined as a separate question in the Preference Proceedings and heard together with the Insolvent Trading Proceedings.' 'Whether evidence in the Insolvent Trading Proceedings should be evidence as to the separate question in the Preference Proceedings, but not vice versa.' 'Whether the proposed orders would facilitate the just, quick and cheap resolution of the real issues in dispute.' 'Whether costs should be ordered in favour of the liquidators after dismissal of the application.']

Ratio Decidendi

Although there was substantial overlap between the solvency issues in the Preference Proceedings and the Insolvent Trading Proceedings, the proposed orders were not shown to promote the just, quick and cheap resolution of the real issues. The one-way evidentiary proposal would require the judge hearing both matters to consider evidence in the Insolvent Trading Proceedings for the Preference Proceedings but exclude evidence led in the Preference Proceedings from the Insolvent Trading Proceedings, creating complexity, an impractical burden of compartmentalisation, and even a risk of inconsistent findings by the same judge. The application for the separate question order was therefore...

Court Disposition

The application for determination of the question of solvency of the First Plaintiff as a separate question in the Preference Proceedings to be heard together with the Insolvent Trading Proceedings was dismissed.

Orders

  • ["The application for order 2 sought in Terex's Amended Interlocutory Process dated 9 November 2018 was dismissed." "The liquidators' undertaking to waive the benefit of s 588E(8) of the Corporations Act and not to rely on the presumption in s 588E(8) in the Preference Proceedings should any conclusion be reached or...