Copeland in his capacity as liquidator of Skyworkers Pty Limited (in Liquidation) v Murace [2023] FCA 14

Federal Court of Australia

Copeland in his capacity as liquidator of Skyworkers Pty Limited (in Liquidation) v Murace [2023] FCA 14 File number(s): NSD 416 of 2022

Judgment of: HALLEY J

Date of judgment: 18 January 2023

Catchwords: PRACTICE AND PROCEDURE – interlocutory application for summary dismissal or strike out pursuant to rr 16.21 and 26.01 of Federal Court Rules 2011 (Cth) – where liquidator advances insolvent trading claims against defendant under ss 588G and 588M of Corporations Act 2001 (Cth) (Corporations Act) – whether failure to keep records gives rise to presumption of or actual insolvency – whether necessary to plead dates on which debts alleged to have been incurred or how debts incurred pursuant to ss 588H and 588GA of Corporations Act – whether proceedings are frivolous or an abuse of process – application for summary dismissal refused – strike out application allowed – whether conditions for leave to re-plead – costs to follow event

Legislation: Corporations Act 2001 (Cth) ss 95A, 286, 588 E, 588G, 588GA, 588H Federal Court of Australia Act 1976 (Cth) ss 31A, 43 Federal Court Rules 2011 (Cth) rr 26.01, 16.21

Cases cited: Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 Christou v Stantons International Pty Ltd [2010] FCA 1150 Construction Forestry Mining & Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462 Devine v Liu; Devine v Ho (2018) 338 FLR 208; [2018] NSWSC 1453 InterPharma Pty Ltd v Hospira, Inc (No 4) [2018] FCA 45 Leica Geosystems Pty Ltd v Koudstaal [2012] FCA 1337 Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 Summers v Repatriation Commission (No 2) [2015] FCAFC 64 Trade Practices Commission v Nicholas Enterprises Pty Ltd and Others (No 3) (1979) 42 FLR 213 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77