Re BBY Limited (Receivers and Managers Appointed) (in liq) and BBY Holdings Pty Ltd (Receivers and Managers Appointed) (in liq) (No 2) [2022] NSWSC 30

Re BBY Limited (Receivers and Managers Appointed) (in liq) and BBY Holdings Pty Ltd (Receivers and Managers Appointed) (in liq) (No 2) [2022] NSWSC 30

The amendment to expressly plead reliance on the presumption of insolvency under s 588E(8) was allowed because Ficema was on notice of the plaintiffs' reliance on the presumption before and during the trial, no objection was taken in a timely manner, and no prejudice to Ficema was demonstrated. Allowing the amendment reflected the case actually run at trial and served the interests of justice.

Parties
First Plaintiffs: Ian Richard Hall and Stephen Ernest Vaughan; Second Plaintiff: BBY Limited (Receivers and Managers Appointed) (in liq); Third Plaintiff: BBY Holdings Pty Limited (Receivers and Managers Appointed) (in liq); Defendant: Ficema Pty Ltd
Jurisdiction
Australia
Judgment Date
28 January 2022
Procedural Posture
Civil Procedure—voidable Transaction Claim by Liquidators / Interlocutory Application for Amendment to Points of Claim During Trial
Outcome
Amendment to the points of claim in paragraphs 29A and 35A allowed
Legal Topics
Voidable Transactions, Unfair Preferences, Amendment of Pleadings, Presumption of Insolvency
Corporations Law Civil Procedure Voidable Transactions Unfair Preferences Amendment of Pleadings Presumption of Insolvency

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Parties

Ian Richard Hall and Stephen Ernest Vaughan

First Plaintiffs

BBY Limited (Receivers and Managers Appointed) (in liq)

Second Plaintiff

BBY Holdings Pty Limited (Receivers and Managers Appointed) (in liq)

Third Plaintiff

Ficema Pty Ltd

Defendant

Procedural Posture

Civil Procedure—voidable Transaction Claim by Liquidators / Interlocutory Application for Amendment to Points of Claim During Trial

Legal Issues

  1. 1 Whether leave should be granted to amend points of claim to plead reliance on the statutory presumption of insolvency under s 588E(8) of the Corporations Act
  2. 2 Whether reliance on the presumption must be pleaded

Ratio Decidendi

The amendment to expressly plead reliance on the presumption of insolvency under s 588E(8) was allowed because Ficema was on notice of the plaintiffs' reliance on the presumption before and during the trial, no objection was taken in a timely manner, and no prejudice to Ficema was demonstrated. Allowing the amendment reflected the case actually run at trial and served the interests of justice.

Court Disposition

Amendment to the points of claim in paragraphs 29A and 35A allowed

Orders

  • Leave granted to amend points of claim to include paragraphs 29A and 35A.