Rodgers v Berchtold Pacific [2006] NSWSC 462

Rodgers v Berchtold Pacific [2006] NSWSC 462

Paragraph 8 was struck out because the liquidator's particulars did not identify facts supporting the essential s 588FE(5)(b) allegation that Otapin entered the transaction for a purpose of defeating, delaying or interfering with creditors' rights. The pleaded and particularised matters of insolvency, preferential effect, and related-entity ownership did not provide an adequate basis to infer that purpose, and the correspondence showed there was no point ordering further particulars at that stage.

Jurisdiction
Australia
Judgment Date
19 May 2006
Procedural Posture
Corporations Proceeding Concerning Alleged Voidable Transaction and Unfair Preference; Interlocutory Application for Further and Better Particulars or Striking Out of Pleading / Interlocutory Application
Outcome
Paragraph 8 of the statement of claim struck out; the statement of claim as a whole was not struck out.
Legal Topics
['winding Up' 'voidable Transactions' 'unfair Preference' "obstruction of Creditors' Rights" 'pleading and Particulars' 'strike Out Application']
['corporations' 'practice and Procedure'] ['winding Up' 'voidable Transactions' 'unfair Preference' "obstruction of Creditors' Rights" 'pleading and Particulars' 'strike Out Application']

Case Brief

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Procedural Posture

Corporations Proceeding Concerning Alleged Voidable Transaction and Unfair Preference; Interlocutory Application for Further and Better Particulars or Striking Out of Pleading / Interlocutory Application

Legal Issues

  1. 1 ["Whether paragraph 8 of the statement of claim adequately pleaded and particularised that Otapin became a party to the transaction for the purpose, or for purposes including the purpose, of defeating, delaying, or interfering with creditors' rights under s 588FE(5)." 'Whether the plaintiff should be ordered to provide further and better particulars or whether paragraph 8 should be struck out.' 'Whether insolvency, preferential effect, and related-entity relationships were sufficient particulars from which to infer a purpose of defeating creditors.']

Ratio Decidendi

Paragraph 8 was struck out because the liquidator's particulars did not identify facts supporting the essential s 588FE(5)(b) allegation that Otapin entered the transaction for a purpose of defeating, delaying or interfering with creditors' rights. The pleaded and particularised matters of insolvency, preferential effect, and related-entity ownership did not provide an adequate basis to infer that purpose, and the correspondence showed there was no point ordering further particulars at that stage.

Court Disposition

Paragraph 8 of the statement of claim struck out; the statement of claim as a whole was not struck out.

Orders

  • ['Paragraph 8 of the statement of claim is struck out.' "The respondent is to pay the applicant's costs." "The proceedings are stood over to the Registrar's Corporations List for further directions."]