Asciak v Australian Secured and Managed Mortgages Pty Ltd (ACN 112 603 219) [2008] FCA 753

Asciak v Australian Secured and Managed Mortgages Pty Ltd (ACN 112 603 219) [2008] FCA 753

The plaintiff's application was dismissed because the critical evidence relating to alleged misrepresentation was inadmissible under s 131(1) of the Evidence Act, and without such evidence, the plaintiff could not establish a factual foundation for a proposed claim in the Family Court; therefore, the application was not brought in good faith as required by s 198F(2) of the Corporations Act.

Jurisdiction
Australia
Judgment Date
23 May 2008
Procedural Posture
Application / Final Determination at First Instance
Outcome
Application dismissed
Legal Topics
['inspection of Company Books' 'family Court Property Settlement' 'admissibility of Communications' 'good Faith in Proposed Proceedings']
['corporations Law' 'family Law' 'evidence Law'] ['inspection of Company Books' 'family Court Property Settlement' 'admissibility of Communications' 'good Faith in Proposed Proceedings']

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Procedural Posture

Application / Final Determination at First Instance

Legal Issues

  1. 1 ['Whether a former director may inspect company books under s 198F(2) Corporations Act for a proposed Family Court proceeding' 'Admissibility of communications made during settlement negotiations under Family Law Act s 10J and Evidence Act s 131' 'Whether the plaintiff is proposing in good faith to bring proceedings in the Family Court to set aside consent orders']

Ratio Decidendi

The plaintiff's application was dismissed because the critical evidence relating to alleged misrepresentation was inadmissible under s 131(1) of the Evidence Act, and without such evidence, the plaintiff could not establish a factual foundation for a proposed claim in the Family Court; therefore, the application was not brought in good faith as required by s 198F(2) of the Corporations Act.

Court Disposition

Application dismissed

Orders

  • ["Plaintiff's originating process dismissed" "Plaintiff to pay defendants' costs of the application"]