Cooper, in the Matter of Wellness Group SA Pty Ltd (In Liquidation) v McDonald [2009] FCA 1099

Cooper, in the Matter of Wellness Group SA Pty Ltd (In Liquidation) v McDonald [2009] FCA 1099

The Statement of Claim was not liable to be struck out because the defendant's complaints were either without substance, concerned typographical errors or particulars rather than missing material facts, or were answered by the pleading read as a whole. The insolvency plea sufficiently pleaded the material fact of inability to pay debts as and when due, the s 588FDA plea was adequate in context, and the pleading made clear that reliance under s 588FC was on s 588FC(a)(i). However, the plaintiffs should amend paragraph 16 to expressly refer to uncommercial transactions as the insolvent transactions limb relied upon for s 588FE(4).

Jurisdiction
Australia
Judgment Date
29 September 2009
Procedural Posture
Application Under S 588 FF of the Corporations Act 2001 (cth) and Ss 21, 22 and 23 of the Federal Court of Australia Act 1976 (cth) Seeking Declarations That Transactions Were Voidable and Repayment of Moneys; Interlocutory Strike Out Application / Defendant's Application Under O 11 R 16 of the Federal Court Rules to Strike Out the Statement of Claim Before Defence
Outcome
The defendant's application to strike out the Statement of Claim was dismissed, and the plaintiffs were granted leave to file and serve an Amended Statement of Claim within 14 days.
Legal Topics
['voidable Transactions' 'unreasonable Director Related Transactions' 'uncommercial Transactions' 'insolvent Transactions' 'strike Out of Pleadings' 'material Facts and Particulars']
['corporations Law' 'insolvency Law' 'civil Procedure'] ['voidable Transactions' 'unreasonable Director Related Transactions' 'uncommercial Transactions' 'insolvent Transactions' 'strike Out of Pleadings' 'material Facts and Particulars']

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Procedural Posture

Application Under S 588 FF of the Corporations Act 2001 (cth) and Ss 21, 22 and 23 of the Federal Court of Australia Act 1976 (cth) Seeking Declarations That Transactions Were Voidable and Repayment of Moneys; Interlocutory Strike Out Application / Defendant's Application Under O 11 R 16 of the Federal Court Rules to Strike Out the Statement of Claim Before Defence

Legal Issues

  1. 1 ['Whether the Statement of Claim failed to plead the necessary material facts for the causes of action alleged and therefore did not disclose a reasonable cause of action or other appropriate case within O 11 r 16(a) of the Federal Court Rules.' 'Whether the alleged pleading failures gave the Statement of Claim a tendency to cause delay within O 11 r 16(b) of the Federal Court Rules.' 'Whether the plaintiffs should have leave to file and serve an Amended Statement of Claim, including an amendment to paragraph 16 referring to uncommercial transactions.']

Ratio Decidendi

The Statement of Claim was not liable to be struck out because the defendant's complaints were either without substance, concerned typographical errors or particulars rather than missing material facts, or were answered by the pleading read as a whole. The insolvency plea sufficiently pleaded the material fact of inability to pay debts as and when due, the s 588FDA plea was adequate in context, and the pleading made clear that reliance under s 588FC was on s 588FC(a)(i). However, the plaintiffs should amend paragraph 16 to expressly refer to uncommercial transactions as the insolvent transactions limb relied upon for s 588FE(4).

Court Disposition

The defendant's application to strike out the Statement of Claim was dismissed, and the plaintiffs were granted leave to file and serve an Amended Statement of Claim within 14 days.

Orders

  • ["The defendant's application to strike out the Statement of Claim be dismissed." 'The plaintiffs have leave to file and serve within 14 days an Amended Statement of Claim in terms of the Proposed Amended Statement of Claim and an amendment to paragraph 16 to make reference to uncommercial transactions.']