Construction Kings Pty Ltd v Cashflow Finance Australia Pty Ltd [2020] FCA 1297

Federal Court of Australia

Construction Kings Pty Ltd v Cashflow Finance Australia Pty Ltd [2020] FCA 1297 File number(s): QUD 14 of 2020

Judgment of: DERRINGTON J

Date of judgment: 4 September 2020

Catchwords: PRACTICE AND PROCEDURE – application for security for cots – whether personal guarantee and undertaking of director sufficient security – where evidence of the value of the director's assets is limited – appropriate form of security

Legislation: Corporations Act 2001, s 1335 Federal Court Rules 2011, r 19.01

Cases cited: Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd [2020] FCA 1018 Neptune Hospitality Pty Ltd v Ozmen Entertainment Pty Ltd [2019] FCA 1734

Division: General Division

Registry: Queensland

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs: 11

Date of hearing: 4 September 2020

Counsel for the Applicant: Mr G Dietz

Solicitor for the Applicant: Rose Litigation Lawyers

Counsel for the Respondent: Mr M de Waard

Solicitor for the Respondent: Stratos Legal

ORDERS QUD 14 of 2020

BETWEEN: CONSTRUCTION KINGS PTY LTD ACN 614 024 378 Applicant

AND: CASHFLOW FINANCE AUSTRALIA PTY LTD ACN 093 756 524 Respondent

order made by: DERRINGTON J DATE OF ORDER: 4 SEPTEMBER 2020

THE COURT ORDERS THAT:

1. Within 16 days of compliance by the applicant with order 3 herein, the respondent provide the following further and better particulars of its Amended Defence filed on 15 July 2020: (a) In relation to paragraph 12(b)(iii) of the Amended Defence, particulars of the allegation that Mr Toki was a director of Euro-Crete; (b) In relation to paragraph 13E(b) of the Amended Defence, particulars of: (i) the "certain invoices" alleged therein; and (ii) the "insured limit" alleged therein. (c) In relation to paragraph 17(i)(i) of the Amended Defence, particulars of what are alleged to be the "events of default" pleaded in paragraph 13E of the Amended Defence, including by reference to the relevant paragraph of clause 30.4 of the Facility Deed; (d) In relation to paragraph 17(i)(ii) of the Amended Defence, particulars of the allegations that the Unverified Euro-Crete Invoices were untrue and misleading; (e) In relation to paragraph 17(i)(iii) of the Amended Defence, particulars of the advice alleged therein, including: (i) the Euro-Crete representative that allegedly gave the advice; and, (ii) how that representative gave the alleged advice, including: A. If given orally (in whole or in part), how the oral advice was given (whether in person, by telephone or otherwise). B. If given in person: 1. The place/s where the advice was given; and, 2. The name/s of the person/s who were present or to whom the advice was given; and, C. If given in writing (in whole or in part), identify the relevant document/s. (f) In relation to paragraph 17(i)(iv) of the Amended Defence, particulars of the date on which the alleged Insolvency Event occurred. (g) In relation to paragraph 17(i)(v) of the Amended Defence, particulars of: (i) The date on which the alleged Insolvency Event occurred; and (ii) The debts that the applicant was allegedly unable to pay as and when they fell due. 2. Within 28 days of compliance by the applicant with order 3 herein: (a) The applicant make standard discovery, within the meaning of r. 20.14 of the Federal Court Rules 2011 (Rules), in the form identified in the affidavit of Amanda Jane Heard sworn 20 August 2020; (b) The respondent make standard discovery in the form identified in the affidavit of William Timothy Fitzgerald sworn 20 August 2020; (c) The discovery provided by each of the parties is to be provided electronically. 3. Within 56 days of the date of this Order, the applicant provide security for costs by way of a bank guarantee, or similar guarantee satisfactory to the respondent, in the amount of $72,000.00. 4. The proceeding be stayed until compliance with order 3 herein. 5. Costs in the proceeding. 6. The proceeding be listed for a case management hearing at 9.45 am on 30 November 2020. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.