Re BBY Limited (Receivers and Managers Appointed) (in liq) and BBY Holdings Pty Ltd (Receivers and Managers Appointed) (in liq) (No 2) [2022] NSWSC 30

Supreme Court New South Wales

Medium Neutral Citation: Re BBY Limited (Receivers and Managers Appointed) (in liq) and BBY Holdings Pty Ltd (Receivers and Managers Appointed) (in liq) (No 2) [2022] NSWSC 30 Hearing dates: 10-12 November 2020 & 14 December 2020 Date of orders: 14 December 2020 Decision date: 28 January 2022 Jurisdiction: Equity - Corporations List Before: Gleeson J Decision: Amendment to the points of claim in paragraphs 29A and 35A allowed Catchwords: CIVIL PROCEDURE – Originating process – amendment – claim by liquidators to recover unfair preferences – whether liquidators' reliance upon presumption of insolvency outside pleaded case – late amendment application to plead reliance on presumption – Corporations Act 2001 (Cth), s 588E(8) – where amendment consistent with liquidators' case run at trial as notified in advance of trial – where no objection by defendant until closing submissions Legislation Cited: Corporations Act 2001 (Cth), ss 286, 588E, 588FA Uniform Civil Procedure Rules 2005 (NSW), r 14.14(1) Cases Cited: Banque Commerciale S.A. (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82; [2006] WASC 281 Re BBY Limited (Receivers and Managers Appointed) (in liq) [2019] NSWSC 1271 Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356; [2010] FCAFC 133 Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490; [1916] HCA 81 Harris v Harris [2021] NSWCA 329 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Market Ltd (2008) 73 NSWLR 653; [2008] NSWCA 206 Kazar (in the capacity as liquidator of Frontier Architects Pty Ltd) (in liq) v Kargarian [2010] FCA 1381; (2010) 81 ACSR 158 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 Re Harris Scarfe Ltd (recs and mgrs apptd) (in liq); Dwyer v R-Jay Pty Ltd (2007) 97 SASR 377; [2007] SASC 115 Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 White v Overland [2001] FCA 1333 Category: Procedural rulings Parties: Ian Richard Hall and Stephen Ernest Vaughan (First plaintiffs) BBY Limited (Receivers and Managers Appointed) (in liq) (Second plaintiff) BBY Holdings Pty Limited (Receivers and Managers Appointed) (in liq) (Third plaintiff) Ficema Pty Ltd (Defendant) Representation: Counsel: Mr D Krochmalik (Plaintiffs) Mr R Scruby SC / Mr J Anderson (Defendant)