Connelly v Commonwealth of Australia, in the matter of Australian Road Express Pty Ltd (Receivers and Managers Appointed) (in liq) [2018] FCA 1429

Connelly v Commonwealth of Australia, in the matter of Australian Road Express Pty Ltd (Receivers and Managers Appointed) (in liq) [2018] FCA 1429

The cross-respondent's (OCT's) application to strike out the statement of cross-claim is dismissed because, at this stage of the proceedings, the Commonwealth has pleaded sufficient particulars to support an allegation of intention under s 596AB of the Corporations Act. Any deficiencies in pleading or particulars can be addressed following discovery or at trial; the Commonwealth's claim is sustainable as a matter of pleading and is not unarguable.

Jurisdiction
Australia
Judgment Date
17 September 2018
Procedural Posture
Interlocutory Application / Strike Out Application Determination
Outcome
Strike out application dismissed; procedural directions and costs made.
Legal Topics
['employee Entitlements' 'priority Payments' 'strike Out Application' 'pleading' 'compensation for Loss' 'security Interests' 'circulating Assets' 'non Circulating Assets']
['corporations Law' 'insolvency Law' 'practice and Procedure'] ['employee Entitlements' 'priority Payments' 'strike Out Application' 'pleading' 'compensation for Loss' 'security Interests' 'circulating Assets' 'non Circulating Assets']

Case Brief

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Procedural Posture

Interlocutory Application / Strike Out Application Determination

Legal Issues

  1. 1 ['Whether the cross-claim discloses a reasonable cause of action under s 596AB and s 596AC of the Corporations Act 2001 (Cth)' 'Whether the Commonwealth has pleaded sufficient facts to support an allegation of intent for contravention of s 596AB' "Whether the issuing of a RAD Notice one minute prior to receivership can constitute a 'relevant agreement or transaction' under s 596AB" 'Whether the pleading fails to disclose a reasonable cause of action or is likely to cause prejudice, embarrassment, or delay']

Ratio Decidendi

The cross-respondent's (OCT's) application to strike out the statement of cross-claim is dismissed because, at this stage of the proceedings, the Commonwealth has pleaded sufficient particulars to support an allegation of intention under s 596AB of the Corporations Act. Any deficiencies in pleading or particulars can be addressed following discovery or at trial; the Commonwealth's claim is sustainable as a matter of pleading and is not unarguable.

Court Disposition

Strike out application dismissed; procedural directions and costs made.

Orders

  • ["The cross-respondent's interlocutory application dated 27 July 2018 be dismissed." "The cross-respondent pay the cross-claimant's costs of the hearing on 14 September 2018." 'Otherwise, the costs of the interlocutory application be reserved.' 'By 4.00 pm on 5 October 2018, the plaintiffs file points of claim.' 'By...