C2C Investments Pty Ltd, in the matter of C2C Investments Pty Ltd v Leigh (No 2) [2011] FCA 501

C2C Investments Pty Ltd, in the matter of C2C Investments Pty Ltd v Leigh (No 2) [2011] FCA 501

The plaintiffs did not establish that the first defendant had no reasonable prospect of successfully prosecuting the cross-claim. The validity and effect of Mortgage AE339782W depended on disputed facts concerning authority, registration and any basis for defeating registered title; the first defendant's construction of s 449E(1B) and contention that the remuneration resolutions were discrete were reasonably arguable; the Deed of Company Arrangement did not foreclose claims arising after the appointment date; and the estoppel claim was properly understood as a promissory estoppel claim with arguable prospects. The challenged pleading paragraphs were sufficiently supported by pleaded...

Jurisdiction
Australia
Judgment Date
16 May 2011
Procedural Posture
Practice and Procedure; Motion for Summary Dismissal and Strike Out of Cross Claim / Amended Notice of Motion Dated 2 May 2011
Outcome
The amended notice of motion dated 2 May 2011 was dismissed with costs.
Legal Topics
['summary Dismissal' 'no Reasonable Prospect of Success' 'strike Out of Pleading' 'voluntary Administration' 'administrator Remuneration' 'registered Mortgage' 'indefeasibility' 'deed of Company Arrangement' 'promissory Estoppel' 'ratification']
['practice and Procedure' 'corporations' 'real Property'] ['summary Dismissal' 'no Reasonable Prospect of Success' 'strike Out of Pleading' 'voluntary Administration' 'administrator Remuneration' 'registered Mortgage' 'indefeasibility' 'deed of Company Arrangement' 'promissory Estoppel' 'ratification']

Case Brief

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Procedural Posture

Practice and Procedure; Motion for Summary Dismissal and Strike Out of Cross Claim / Amended Notice of Motion Dated 2 May 2011

Legal Issues

  1. 1 ["Whether the first defendant's cross-claim was frivolous or vexatious or had no reasonable prospect of success under O 20 r 5(1)(a) of the Federal Court Rules or s 31A of the Federal Court of Australia Act 1976 (Cth)." "Whether Mortgage AE339782W was invalid or of no force or effect because it was executed after the administration ended, allegedly not in accordance with s 56(1) of the Real Property Act 1900 (NSW), or exceeded the authority conferred by the creditors' resolution." "Whether the resolutions fixing the first defendant's remuneration complied with s 449E(1B) of the Corporations Act 2001 (Cth)." "Whether the Deed of Company Arrangement foreclosed the first defendant's claim for remuneration and expenses in relation to C2C Developments." 'Whether the cross-claim based on estoppel had reasonable prospects of success.' 'Whether paragraphs 42 and 38 of the cross-claim should be struck out for want of supporting material facts.']

Ratio Decidendi

The plaintiffs did not establish that the first defendant had no reasonable prospect of successfully prosecuting the cross-claim. The validity and effect of Mortgage AE339782W depended on disputed facts concerning authority, registration and any basis for defeating registered title; the first defendant's construction of s 449E(1B) and contention that the remuneration resolutions were discrete were reasonably arguable; the Deed of Company Arrangement did not foreclose claims arising after the appointment date; and the estoppel claim was properly understood as a promissory estoppel claim with arguable prospects. The challenged pleading paragraphs were sufficiently supported by pleaded...

Court Disposition

The amended notice of motion dated 2 May 2011 was dismissed with costs.

Orders

  • ['The amended notice of motion dated 2 May 2011 be dismissed.' "The plaintiffs are to pay the first defendant's costs of the motion."]