Compaq Computer Pty Ltd v Merry, H & Ors [1995] FCA 36

Compaq Computer Pty Ltd v Merry, H & Ors [1995] FCA 36

The claim against the fifth respondent should not be struck out because, as a director of Hisoft, he could be expected to be aware of a formal agreement of major importance to Hisoft, and the absence of concrete evidence at this stage was understandable given that Hisoft was in receivership and its internal documents were with the receiver. The proceedings were not shown to be an abuse of process or otherwise to warrant the order sought, but particulars should be provided after the return of the subpoena.

Jurisdiction
Australia
Judgment Date
07 February 1995
Procedural Posture
Civil Proceeding / Interlocutory Notices of Motion Seeking Strike Out and Particulars
Outcome
The notices of motion were dismissed except for orders requiring particulars, and the fifth respondent was ordered to pay the applicant's costs of the notices of motion.
Legal Topics
['strike Out' 'abuse of Process' 'particulars' "directors' Duties" 'receivership']
['civil Procedure' 'corporations'] ['strike Out' 'abuse of Process' 'particulars' "directors' Duties" 'receivership']

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Procedural Posture

Civil Proceeding / Interlocutory Notices of Motion Seeking Strike Out and Particulars

Legal Issues

  1. 1 ['Whether the claim against the fifth respondent should be struck out at this stage.' 'Whether particulars should be ordered and, if so, when.']

Ratio Decidendi

The claim against the fifth respondent should not be struck out because, as a director of Hisoft, he could be expected to be aware of a formal agreement of major importance to Hisoft, and the absence of concrete evidence at this stage was understandable given that Hisoft was in receivership and its internal documents were with the receiver. The proceedings were not shown to be an abuse of process or otherwise to warrant the order sought, but particulars should be provided after the return of the subpoena.

Court Disposition

The notices of motion were dismissed except for orders requiring particulars, and the fifth respondent was ordered to pay the applicant's costs of the notices of motion.

Orders

  • ["By 7 April 1995 the applicant provide to the fifth respondent the particulars requested in the letter of 26 September 1994 from the fifth respondent's solicitors." 'Otherwise, the notice of motion dated 8 November 1994 and the notice of motion dated 30 January 1995 are dismissed.' 'The particulars sought in...