McEvoy v Commissioner of Taxation, in the matter of Careers Australia Group Limited (in liq) [2021] FCA 216

McEvoy v Commissioner of Taxation, in the matter of Careers Australia Group Limited (in liq) [2021] FCA 216

Because the Federal Court Rules 2011 (Cth) allow a s 588FGA claim to be treated as a third party claim and Mr McKendry had appeared without objection to the form or timing of the interlocutory application, the Court accepted the interlocutory application as properly constituting the third party claim and ordered that specified Part 15 rules apply as if it had been commenced by cross-claim. The Court required the Commissioner to plead the claim by statement of claim, but deferred questions of Mr McKendry's defence and evidence until after public examinations because of document access, examination, resource and potential prejudice concerns.

Jurisdiction
Australia
Judgment Date
11 March 2021
Procedural Posture
Commercial and Corporations; Corporations and Corporate Insolvency; Interlocutory Application by Defendant for Relief Against Third Party Under S 588 FGA of the Corporations Act 2001 (cth) / Case Management Hearing on Interlocutory Application; Procedural Orders Made
Outcome
Procedural orders made on the interlocutory application; costs reserved.
Legal Topics
['application Under S 588 FGA of the Corporations Act 2001 (cth)' 'third Party Claim' 'cross Claim Procedure Under Part 15 of the Federal Court Rules 2011 (cth)' 'pleadings' 'public Examinations' 'case Management']
['practice and Procedure' 'corporations' 'corporate Insolvency'] ['application Under S 588 FGA of the Corporations Act 2001 (cth)' 'third Party Claim' 'cross Claim Procedure Under Part 15 of the Federal Court Rules 2011 (cth)' 'pleadings' 'public Examinations' 'case Management']

Case Brief

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Procedural Posture

Commercial and Corporations; Corporations and Corporate Insolvency; Interlocutory Application by Defendant for Relief Against Third Party Under S 588 FGA of the Corporations Act 2001 (cth) / Case Management Hearing on Interlocutory Application; Procedural Orders Made

Legal Issues

  1. 1 ["Whether it was procedurally appropriate or necessary for the Commissioner's claim for relief under s 588FGA of the Corporations Act 2001 (Cth) to be commenced by way of notice of cross-claim under Part 15 of the Federal Court Rules 2011 (Cth)." "What procedural orders should govern the Commissioner's interlocutory application against Mr McKendry." 'Whether orders should be made immediately requiring Mr McKendry to file a defence or requiring evidence to be filed in the principal proceeding.']

Ratio Decidendi

Because the Federal Court Rules 2011 (Cth) allow a s 588FGA claim to be treated as a third party claim and Mr McKendry had appeared without objection to the form or timing of the interlocutory application, the Court accepted the interlocutory application as properly constituting the third party claim and ordered that specified Part 15 rules apply as if it had been commenced by cross-claim. The Court required the Commissioner to plead the claim by statement of claim, but deferred questions of Mr McKendry's defence and evidence until after public examinations because of document access, examination, resource and potential prejudice concerns.

Court Disposition

Procedural orders made on the interlocutory application; costs reserved.

Orders

  • ['Rules 15.06, 15.09, 15.10, 15.12 and 15.13 of the Federal Court Rules 2011 (Cth) shall apply as if the Interlocutory Application had been commenced by way of cross-claim under Division 15.1 of the Rules.' 'The Interlocutory Application continue by way of pleadings.' 'By 4pm on 30 March 2021, the...