In the matter of Squirrel Limited (In Liquidation) [2021] NSWSC 1658

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Squirrel Limited (In Liquidation) [2021] NSWSC 1658 Hearing dates: 3 May 2021 Date of orders: 16 December 2021 Decision date: 16 December 2021 Jurisdiction: Equity - Corporations List Before: Williams J Decision: See orders at [86]. Catchwords: PRACTICE AND PROCEDURE – application for summary judgment in respect of insolvent trading claim under Corporations Act 2001 (Cth), ss 588G(2) and 588M – Uniform Civil Procedure Rules 2005 (NSW), r 13.1 – principles applicable to summary judgment application ­– whether plaintiffs' claims will ultimately succeed – where the defendant has not filed a notice of appearance, has not appeared and has not filed any defence or evidence – whether defendant has no defence to insolvent trading claims. CORPORATIONS – insolvent trading – director's liability – whether the company was insolvent when the debts were incurred – whether reasonable grounds for suspecting insolvency – whether a reasonable person in the director's position would have been aware at that time that there were grounds for suspecting that the company was insolvent. Legislation Cited: Corporations Act 2001 (Cth), ss 95A, 443A, 588G, 588H, 588M Federal Court of Australia Act 1976 (Cth), s 31A Supreme Court Rules 1970 (NSW), Pt 3.2 Trans-Tasman Proceedings Act 2010 (Cth) Pt 2, Div 2 Uniform Civil Procedure Rules 2005 (NSW), r 13.1 Cases Cited: General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Hambleton (liquidator), in the matter of China Cooking Group Aus Pty Ltd (in liq) v Zhang [2020] FCA 1879 Harrison v Lewis [2001] VSC 27 Ke Qin Ren v Hong Jiang (2014) 104 ACSR 149; [2014] NSWCA 388 Long Leys Co Pty Ltd v Silkdale Pty Ltd (1991) 5 BPR 11,512 O'Brien v Bank of Western Australia Ltd (2013) 16 BPR 31,705; [2013] NSWCA 71 Re Humur Pty Limited [2020] NSWSC 1759 Re Salfa Pty Ltd (in liq) [2014] NSWSC 1493 Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 Treloar Constructions Pty Ltd v McMillan (2017) 318 FLR 58; (2017) 120 ACSR 130; [2017] NSWCA 72 Yeo (in their capacity as liquidators of Bradi Transport Pty Ltd (in liq)) v Sklenovski [2020] FCA 1540 Category: Principal judgment Parties: Brent Kijurina and Richard Lawrence in their capacity as liquidators of Squirrel Limited (In Liquidation) (First Plaintiffs) Squirrel Limited (In Liquidation) (Second Plaintiff) Damien Linn (Second Defendant) Representation: Counsel: Mr P Dunn (Plaintiffs)