Oswal, in the matter of Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) v Carson, McEvoy and Theobald (Receivers and Managers) (No 6) [2014] FCA 1435

Oswal, in the matter of Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) v Carson, McEvoy and Theobald (Receivers and Managers) (No 6) [2014] FCA 1435

Paragraphs 1 and 2 of the statement of relief were struck out because only ASIC had standing to seek the proposed declarations of contravention and pecuniary penalties. Allegations concerning pre-appointment fees and improper purpose were outside the inquiry as ordered and were struck out, subject to directions for an application to expand the inquiry as to pre-appointment fees. Allegations asserting breaches of statutory and common law duties were struck out because the inquiry did not expressly concern such breaches. Allegations sufficiently connected to the ordered inquiry, including certain matters about last-six-weeks fees, solicitation of post-receivership work, time recording, ANZ...

Jurisdiction
Australia
Judgment Date
24 December 2014
Procedural Posture
Corporations Proceeding Concerning an Inquiry Under S 423 of the Corporations Act 2001 (cth) Into the Conduct of Receivers and Managers / Defendants' Interlocutory Application to Strike Out Paragraphs of the Plaintiff's Statement of Relief and Statement of Facts and Contentions Before the Hearing of the Inquiry
Outcome
Defendants' interlocutory application allowed in part; specified paragraphs of the plaintiff's statement of relief and statement of facts and contentions were struck out, other objections were rejected, the inquiry was listed for hearing, and costs were reserved.
Legal Topics
['inquiry Into Conduct of Receivers and Managers' 'scope of Inquiry Under S 423 of the Corporations Act 2001 (cth)' 'strike Out Application' 'standing to Seek Declarations of Contravention and Pecuniary Penalties' "receivers' Fees, Expenses and Remuneration"]
['corporations Law' 'insolvency and Receivership' 'civil Procedure'] ['inquiry Into Conduct of Receivers and Managers' 'scope of Inquiry Under S 423 of the Corporations Act 2001 (cth)' 'strike Out Application' 'standing to Seek Declarations of Contravention and Pecuniary Penalties' "receivers' Fees, Expenses and Remuneration"]

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Procedural Posture

Corporations Proceeding Concerning an Inquiry Under S 423 of the Corporations Act 2001 (cth) Into the Conduct of Receivers and Managers / Defendants' Interlocutory Application to Strike Out Paragraphs of the Plaintiff's Statement of Relief and Statement of Facts and Contentions Before the Hearing of the Inquiry

Legal Issues

  1. 1 ["Whether paragraphs 1 and 2 of the plaintiff's statement of relief should be struck out because only ASIC had standing to seek declarations under s 1317E and pecuniary penalties under s 1317G of the Corporations Act 2001 (Cth)." 'Whether allegations concerning pre-appointment fees were outside the scope of the inquiry as ordered and required an application to expand the inquiry.' 'Whether allegations that the defendants acted for an improper purpose in conducting the receivership were outside the scope of the inquiry as ordered.' 'Whether allegations about entry into the share sale deed, meetings with Apache Fertilisers and solicitation of post-receivership work were within the scope of the inquiry.' 'Whether allegations of breaches of ss 180 to 183 of the Corporations Act 2001 (Cth) and general common law duties should be struck out because the inquiry did not expressly concern breach of duty.' 'Whether allegations about time recording, ANZ bank and ANZFS knowledge, and inaccuracies in Forms 524 were outside the scope of the inquiry.']

Ratio Decidendi

Paragraphs 1 and 2 of the statement of relief were struck out because only ASIC had standing to seek the proposed declarations of contravention and pecuniary penalties. Allegations concerning pre-appointment fees and improper purpose were outside the inquiry as ordered and were struck out, subject to directions for an application to expand the inquiry as to pre-appointment fees. Allegations asserting breaches of statutory and common law duties were struck out because the inquiry did not expressly concern such breaches. Allegations sufficiently connected to the ordered inquiry, including certain matters about last-six-weeks fees, solicitation of post-receivership work, time recording, ANZ...

Court Disposition

Defendants' interlocutory application allowed in part; specified paragraphs of the plaintiff's statement of relief and statement of facts and contentions were struck out, other objections were rejected, the inquiry was listed for hearing, and costs were reserved.

Orders

  • ["Paragraphs 1 and 2 of the plaintiff's statement of relief be struck out." "Paragraphs 50-54, 107-111, 116, 118, 120, 121(a)-(c), 122, 125, 127, 129, 131, 133, 134, 136, 138, 140-142 and Schedule 1 of the plaintiff's statement of facts and contentions be struck out." 'The inquiry will be heard during the period 4...