Wily v King [2010] NSWSC 352

Wily v King [2010] NSWSC 352

Because proceedings for recovery under s 588M(2) of the Corporations Act must be commenced by originating process under the Supreme Court (Corporations) Rules, and not by statement of claim, the default judgment process under Part 16 of the Uniform Civil Procedure Rules does not apply. Therefore, plaintiffs cannot obtain default judgment in these proceedings merely because defendants failed to file a defence.

Parties
First Plaintiff: Andrew Hugh Jenner Wily and David Anthony Hurst in their capacity as liquidators of LED (North Coast) Pty Limited; Second Plaintiff: LED (North Coast) Pty Limited; First Defendant: Larry Edward King; Second Defendant: Pamela Elizabeth King
Jurisdiction
Australia
Judgment Date
29 April 2010
Procedural Posture
Corporations – Statutory Cause of Action by Liquidators for Insolvent Trading / Application for Default Judgment Dismissed; Set for Further Directions
Outcome
Application for default judgment dismissed
Legal Topics
Winding Up, Insolvent Trading, Default Judgment, Procedural Requirements Under Supreme Court (corporations) Rules, Application of Uniform Civil Procedure Rules
Corporations Law Civil Procedure Winding Up Insolvent Trading Default Judgment Procedural Requirements Under Supreme Court (corporations) Rules Application of Uniform Civil Procedure Rules

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Parties

Andrew Hugh Jenner Wily and David Anthony Hurst in their capacity as liquidators of LED (North Coast) Pty Limited

First Plaintiff

LED (North Coast) Pty Limited

Second Plaintiff

Larry Edward King

First Defendant

Pamela Elizabeth King

Second Defendant

Procedural Posture

Corporations – Statutory Cause of Action by Liquidators for Insolvent Trading / Application for Default Judgment Dismissed; Set for Further Directions

Legal Issues

  1. 1 Whether proceedings for liquidator recovery under s 588M(2) Corporations Act may proceed to default judgment when commenced by statement of claim instead of originating process
  2. 2 Whether the Uniform Civil Procedure Rules or Supreme Court (Corporations) Rules govern such proceedings and application for default judgment
  3. 3 Nature of the statutory cause of action under s 588M(2) and procedural implications

Ratio Decidendi

Because proceedings for recovery under s 588M(2) of the Corporations Act must be commenced by originating process under the Supreme Court (Corporations) Rules, and not by statement of claim, the default judgment process under Part 16 of the Uniform Civil Procedure Rules does not apply. Therefore, plaintiffs cannot obtain default judgment in these proceedings merely because defendants failed to file a defence.

Court Disposition

Application for default judgment dismissed

Orders

  • Notice of motion for default judgment dismissed
  • Proceedings listed before Corporations Judge on 17 May 2010 for further directions