Stanton (WA) Pty Ltd (in Liq) v Vasquez Investments Pty Ltd [2016] NSWSC 1635

Stanton (WA) Pty Ltd (in Liq) v Vasquez Investments Pty Ltd [2016] NSWSC 1635

Leave was granted because the affidavit of Mr Lewis was at least arguably relevant to the first and second defendants' defence, including the circumstances in which the sixth defendant subscribed for shares and the alleged intent to defraud creditors. The Court considered it inappropriate to determine on this interlocutory motion whether the first and second defendants could rely on s 37A(3), and was sceptical that UCPR 6.11 was engaged because the party seeking to file the affidavit had not filed a submitting appearance; even if it was engaged, the evidence should not be shut out at this stage.

Jurisdiction
Australia
Judgment Date
11 November 2016
Procedural Posture
Equity Commercial List; Procedural and Other Ruling / Notice of Motion by the Second Defendant for Leave to Rely on an Affidavit
Outcome
Leave granted; costs of the motion reserved to the trial judge.
Legal Topics
['submitting Appearance' 'leave to Rely on Affidavit' 'ucpr 6.11' 'alleged Intent to Defraud Creditors' 'trustee Indemnity' 'share Issue and Dilution']
['civil Procedure' 'equity' 'trusts' 'property Law'] ['submitting Appearance' 'leave to Rely on Affidavit' 'ucpr 6.11' 'alleged Intent to Defraud Creditors' 'trustee Indemnity' 'share Issue and Dilution']

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Procedural Posture

Equity Commercial List; Procedural and Other Ruling / Notice of Motion by the Second Defendant for Leave to Rely on an Affidavit

Legal Issues

  1. 1 ['Whether the second defendant should be granted leave to rely on an affidavit of the sole director of the sixth defendant after the time for service of affidavits had expired.' 'Whether relying on the affidavit would contravene or circumvent UCPR 6.11 because the sixth defendant had filed a submitting appearance.' "Whether the affidavit was potentially relevant to the first and second defendants' defence to the plaintiff's claims, including issues concerning alleged intent to defraud creditors and s 37A(3) of the Conveyancing Act."]

Ratio Decidendi

Leave was granted because the affidavit of Mr Lewis was at least arguably relevant to the first and second defendants' defence, including the circumstances in which the sixth defendant subscribed for shares and the alleged intent to defraud creditors. The Court considered it inappropriate to determine on this interlocutory motion whether the first and second defendants could rely on s 37A(3), and was sceptical that UCPR 6.11 was engaged because the party seeking to file the affidavit had not filed a submitting appearance; even if it was engaged, the evidence should not be shut out at this stage.

Court Disposition

Leave granted; costs of the motion reserved to the trial judge.

Orders

  • ['Makes Order 1 in the Notice of Motion filed 9 November 2016.' 'Reserves the costs of the Motion to the Trial Judge.']