In the matter of Tiaro Coal Limited (in liquidation) (ACN 127 936 412) [2018] NSWSC 828

In the matter of Tiaro Coal Limited (in liquidation) (ACN 127 936 412) [2018] NSWSC 828

No persuasive evidence of prejudice arising from delay; delay due to prudent efforts by liquidators to secure litigation funding and indemnity. No inconsistency requiring Corporations Rules to exclude UCPR. No basis for exercise of Court's discretion to set aside service or dismiss proceedings; applications dismissed.

Parties
Plaintiff: Tiaro Coal Limited (in liquidation) (ACN 127 936 412); First Defendant: Peter Meers; Second Defendant: Francis Choy; Third Defendant: Rado Jacob Rebek; Fourth Defendant: Ibrahim Menudin; Fifth Defendant: Wei Huang; Sixth Defendant: Jianfei Wang; Seventh Defendant: Hudson Resources Limited; Eighth Defendant: Hudson Corporate Limited; Ninth Defendant: Bundaberg Coal Pty Ltd
Jurisdiction
Australia
Judgment Date
05 June 2018
Procedural Posture
Interlocutory Application / Ruling on Applications to Set Aside Originating Process and Related Procedural Matters
Outcome
Applications to set aside Originating Process and service dismissed with costs.
Legal Topics
Service of Originating Process, Litigation Funding, Delay in Service, Application of Corporations Rules Vs UCPR
Corporations Civil Procedure Service of Originating Process Litigation Funding Delay in Service Application of Corporations Rules Vs UCPR

Case Brief

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Parties

Tiaro Coal Limited (in liquidation) (ACN 127 936 412)

Plaintiff

Peter Meers

First Defendant

Francis Choy

Second Defendant

Rado Jacob Rebek

Third Defendant

Ibrahim Menudin

Fourth Defendant

Wei Huang

Fifth Defendant

Jianfei Wang

Sixth Defendant

Hudson Resources Limited

Seventh Defendant

Hudson Corporate Limited

Eighth Defendant

Bundaberg Coal Pty Ltd

Ninth Defendant

Procedural Posture

Interlocutory Application / Ruling on Applications to Set Aside Originating Process and Related Procedural Matters

Legal Issues

  1. 1 Whether r 2.7 of Supreme Court (Corporations) Rules 1999 (NSW) applies to the exclusion of Uniform Civil Procedure Rules 2005 (NSW) r 6.2(4)
  2. 2 Whether delay in serving Originating Process by reason of delay in securing litigation funding warrants setting aside service or dismissal
  3. 3 Whether service should be set aside or proceedings dismissed for non-compliance with r 2.7

Ratio Decidendi

No persuasive evidence of prejudice arising from delay; delay due to prudent efforts by liquidators to secure litigation funding and indemnity. No inconsistency requiring Corporations Rules to exclude UCPR. No basis for exercise of Court's discretion to set aside service or dismiss proceedings; applications dismissed.

Court Disposition

Applications to set aside Originating Process and service dismissed with costs.

Orders

  • The Amended Interlocutory Process filed on 7 February 2018 by Second, Fifth, Seventh and Eighth Defendants dismissed with costs, reserving the question of the basis on which such costs are to be paid.
  • Amended Interlocutory Processes filed by the Third and Fourth Defendants on same date dismissed with costs, reserving basis on costs.