New Cap Reinsurance Corporation Ltd & Anor v All American Life Insurance Company [2004] NSWSC 366

New Cap Reinsurance Corporation Ltd & Anor v All American Life Insurance Company [2004] NSWSC 366

The statement of claim sufficiently identifies the transaction and matters that constitute the alleged unfair preference; it is neither embarrassing nor prejudicial to the defendant and should not be struck out at this interlocutory stage.

Parties
First Plaintiff/respondent: New Cap Reinsurance Corporation Ltd (in liquidation); Second Plaintiff/respondent: John Raymond Gibbons (as liquidator of the first plaintiff); Defendant/applicant: All American Life Insurance Company
Jurisdiction
Australia
Judgment Date
05 May 2004
Procedural Posture
Interlocutory Application / Application to Strike Out Statement of Claim
Outcome
Interlocutory process dismissed with costs.
Legal Topics
Unfair Preferences, Winding Up, Pleadings, Voidable Transactions, Reinsurance Contracts
Corporations Law Civil Procedure Unfair Preferences Winding Up Pleadings Voidable Transactions Reinsurance Contracts

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Parties

New Cap Reinsurance Corporation Ltd (in liquidation)

First Plaintiff/respondent

John Raymond Gibbons (as liquidator of the first plaintiff)

Second Plaintiff/respondent

All American Life Insurance Company

Defendant/applicant

Procedural Posture

Interlocutory Application / Application to Strike Out Statement of Claim

Legal Issues

  1. 1 Whether pleading an unfair preference under Corporations Act 2001 (Cth), s 588FA must identify affectation upon company's assets
  2. 2 Whether in a multi-step transaction the date of entry upon the transaction must be identified
  3. 3 Whether all steps of the transaction must occur in the 6 month period ending on the relation-back day

Ratio Decidendi

The statement of claim sufficiently identifies the transaction and matters that constitute the alleged unfair preference; it is neither embarrassing nor prejudicial to the defendant and should not be struck out at this interlocutory stage.

Court Disposition

Interlocutory process dismissed with costs.

Orders

  • Defendant's interlocutory process dismissed.
  • Defendant to pay the plaintiffs' costs.