ESP Entertainment Pty Limited v Double Image Design and Print Management Pty Limited [2006] NSWDC 80

ESP Entertainment Pty Limited v Double Image Design and Print Management Pty Limited [2006] NSWDC 80

A determination under section 459H of the Corporations Act 2001 that there was no offsetting claim does not operate as a res judicata barring the plaintiff from pursuing proceedings in the District Court. The statutory scheme in Part 5.4 is not intended to finally and conclusively determine monetary claims between debtor and creditor for all purposes, but is tailored to resolve issues regarding solvency and winding up. Accordingly, the defendant's application to dismiss or strike out the Statement of Claim is dismissed.

Jurisdiction
Australia
Judgment Date
18 May 2006
Procedural Posture
Civil / Ruling on Strike Out/dismissal and Summary Judgment Applications, Interlocutory Stage
Outcome
The defendant's applications to dismiss or strike out the plaintiff's claim are dismissed. Orders made for the plaintiff to file and serve a defence to the cross-claim, for parties to confer regarding discovery, costs reserved, liberty to apply, and matter stood over for directions.
Legal Topics
['statutory Demand' 'res Judicata' 'summary Judgment' 'offsetting Claim' 'winding Up Proceedings']
['corporations Law' 'civil Procedure'] ['statutory Demand' 'res Judicata' 'summary Judgment' 'offsetting Claim' 'winding Up Proceedings']

Case Brief

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Procedural Posture

Civil / Ruling on Strike Out/dismissal and Summary Judgment Applications, Interlocutory Stage

Legal Issues

  1. 1 ['Whether determination under s 459H of Corporations Act operates as res judicata preventing further proceedings in District Court' "Whether plaintiff's Statement of Claim should be dismissed or struck out on basis of res judicata" 'Whether summary judgment should be granted to defendant on cross-claim']

Ratio Decidendi

A determination under section 459H of the Corporations Act 2001 that there was no offsetting claim does not operate as a res judicata barring the plaintiff from pursuing proceedings in the District Court. The statutory scheme in Part 5.4 is not intended to finally and conclusively determine monetary claims between debtor and creditor for all purposes, but is tailored to resolve issues regarding solvency and winding up. Accordingly, the defendant's application to dismiss or strike out the Statement of Claim is dismissed.

Court Disposition

The defendant's applications to dismiss or strike out the plaintiff's claim are dismissed. Orders made for the plaintiff to file and serve a defence to the cross-claim, for parties to confer regarding discovery, costs reserved, liberty to apply, and matter stood over for directions.

Orders

  • ["Insofar as the defendant has sought to dismiss the plaintiff's claim pursuant to Part 13 Rule (4)(1) or to strike it out pursuant to Part 14 Rule 14.28, such applications are dismissed." 'Order the Plaintiff/Cross Defendant to file and serve a defence to the cross-claim within 7 days.' 'Direct the solicitors for...