Skalkos v Smiles and Ors [2006] NSWSC 192

Skalkos v Smiles and Ors [2006] NSWSC 192

The First Defendant has not demonstrated, to the stringent standard required for summary dismissal, that all of the plaintiff’s claims are provable debts under s.82 of the Bankruptcy Act 1966 (Cth) or that they do not fall within the fraud exception in s.153(2)(b); there are live triable issues which should proceed to trial.

Jurisdiction
Australia
Judgment Date
27 March 2006
Procedural Posture
Civil / Interlocutory Application for Summary Dismissal
Outcome
Application for summary dismissal dismissed
Legal Topics
['summary Dismissal' 'provable Debts' 'fraud Exception' 'fiduciary Duty' 'negligence' 'misleading and Deceptive Conduct']
['bankruptcy' 'civil Procedure' 'equity'] ['summary Dismissal' 'provable Debts' 'fraud Exception' 'fiduciary Duty' 'negligence' 'misleading and Deceptive Conduct']

Case Brief

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Procedural Posture

Civil / Interlocutory Application for Summary Dismissal

Legal Issues

  1. 1 ["Whether the plaintiff's claims against the First Defendant are provable debts under s.82 of the Bankruptcy Act 1966 (Cth)" 'Whether the First Defendant is released from the claims by reason of entering into a Part X composition under the Bankruptcy Act 1966 (Cth)' 'Whether the claims fall within the fraud exception in s.153(2)(b) of the Bankruptcy Act 1966 (Cth)' 'Whether the application meets the threshold for summary dismissal']

Ratio Decidendi

The First Defendant has not demonstrated, to the stringent standard required for summary dismissal, that all of the plaintiff’s claims are provable debts under s.82 of the Bankruptcy Act 1966 (Cth) or that they do not fall within the fraud exception in s.153(2)(b); there are live triable issues which should proceed to trial.

Court Disposition

Application for summary dismissal dismissed

Orders

  • ["The First Defendant's Notice of Motion is dismissed with costs."]