FEDERAL COURT OF AUSTRALIA
Cargill Consulting Ltd v BTAC Coal Pty Ltd [2019] FCA 2070
File number(s): VID 646 of 2017 Judge(s): ANDERSON J Date of judgment: 5 December 2019 Date of publication of reasons: 12 December 2019 Catchwords: PRACTICE AND PROCEDURE – application for summary judgment – where statement of claim is defective in multiple respects – where respondents have filed defence denying liability – where there are factual conflicts in affidavit evidence – where applicants obtained previous order against two respondents by consent – whether a res judicata arises – whether respondents have no reasonable prospect of successfully defending all or part of the proceeding
Held: application for summary judgment dismissed – Court not satisfied that respondents have no reasonable prospect of successfully defending proceeding
Legislation: Bankruptcy Act 1966 (Cth) s 43
Corporations Act 2001 (Cth) s 1041H
Federal Court of Australia Act 1976 (Cth) s 31A
Federal Court Rules 2011 (Cth) r 26.01(e)
Cases cited: Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Western Australia v Fazeldean (No 2) [2014] FCAFC 58; 211 FCR 150
Zetta Jet Pte Ltd v The Ship Dragon Pearl (No 2) [2018] FCAFC 132; 265 FCR 290
Date of hearing: 5 December 2019 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 29 Solicitor for the Applicants: Mr G Singh of Saundh, Singh and Smith Lawyers Counsel for the Respondents: The Respondents did not appear ORDERS
VID 646 of 2017 BETWEEN: CARGILL CONSULTING LTD
First Applicant
PROF GORDON WALKER
Second Applicant
AND: BTAC COAL PTY LTD (ACN 151 421 804)
First Respondent
DHUNN-CARR AUSTRALIA PTY LTD (ACN 119 263 731)
Second Respondent
BETWEEN THE TIGER AND THE CROCODILE LIMITED (NZBN 942 903 259 8346) (and others named in the Schedule)
Third Respondent
JUDGE:
ANDERSON J
DATE OF ORDER:
5 DECEMBER 2019
THE COURT ORDERS THAT:
1.The applicants’ interlocutory application dated 22 November 2017 for summary judgment against the respondents is dismissed.
2.There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ANDERSON J:
On 5 December 2019, I dismissed an application by the applicants for summary judgment in this proceeding. These are my reasons for doing so.
Procedural history
This proceeding was commenced in June 2017. The applicants allege that the respondents engaged in conduct that was misleading and deceptive in contravention of s 1041H of the Corporations Act 2001 (Cth) (Corporations Act) in relation to the subscription by the first applicant for shares in the first respondent, BTAC Coal Pty Ltd (Company), for a price of $50,000 on or about 31 July 2014. The applicants allege that the first applicant completed the subscription form and paid the subscription price but that the respondents:
(a)failed…
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- Case
- [2019] FCA 2070
- Decision Date
CaseChat Overview and Summary
The Court had to determine whether the applicants were entitled to summary judgment against the respondents. The applicants submitted that the respondents had no reasonable prospect of successfully defending the proceeding because the defence was an “unqualified denial” of the applicants’ claims. The respondents submitted that there were factual conflicts in the affidavit evidence and that the applicants had obtained a previous order against two of the respondents by consent, which created a res judicata. The Court held that it was not satisfied that the respondents had no reasonable prospect of successfully defending the proceeding because of the factual conflicts in the affidavit evidence. The Court also held that the previous order by consent did not create a res judicata because it did not determine the merits of the applicants’ claims against the other respondents.
The Court dismissed the applicants’ interlocutory application for summary judgment against the respondents. The Court ordered that there be no order as to costs.
Orders
Orders of the court
1. The applicants’ interlocutory application dated 22 November 2017 for summary judgment against the respondents is dismissed.
2. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
This proceeding was commenced in June 2017. The applicants allege that the respondents engaged in conduct that was misleading and deceptive in contravention of s 1041H of the Corporations Act 2001 (Cth) (Corporations Act) in relation to the subscription by the first applicant for shares in the first respondent, BTAC Coal Pty Ltd (Company), for a price of $50,000 on or about 31 July 2014. The applicants allege that the first applicant completed the subscription form and paid the subscription price but that the respondents:(a)failed to account for the moneys in the manner required by the share application form;(b)failed to issue 50,000 new shares in the Company as required by the share application form; and(c)without the first applicant’s authority, diverted the $50,000 to another company called “Between the Tiger and the Crocodile Limited”, being the third respondent. This description of the applicants’ claims represents my broad understanding of the factual and legal matters alleged having read the statement of claim and the affidavits filed by the applicants. I say this because the statement of claim is, in my view, defective in multiple respects. This includes that the statement of claim, as currently drafted:(a)fails to identify with any precision the alleged misleading and deceptive conduct said to contravene s 1041H of the Corporations Act. Moreover, the claims pleaded do not identify the specific representations made by the respondents, nor do they identify what representations were relied upon by the applicants;(b)does not identify the allegations which are made against the second to eighth respondents and the causes of action which are relied upon; and(c)does not plead with sufficient clarity to enable this Court to grant the relief which is sought in the applicants’ originating process. Notwithstanding these defects, the respondents filed a defence dated 12 September 2017 which:(a)admits that the first respondent received $50,000 of share application moneys from either the first or the second applicant;(b)alleges that the first applicant received what he had bargained for, namely 50,000 shares in the Company;(c)denies the allegations of misleading and deceptive conduct; and(d)alleges that the applicants had already been compensated in the sum of $50,000 by reason of a claim previously made by the applicants in the High Court of New Zealand. On 22 November 2017, the applicants issued an interlocutory application seeking summary judgment against the respondents in accordance with the relief sought in the originating process. In support of that application, the applicants relied upon four affidavits affirmed by the second applicant, Professor Gordon Walker, and two affidavits affirmed by the solicitor for the applicants, Gurpal Singh. On 15 December 2017, O’Callaghan J made the following orders:1. The respondents file and serve affidavit(s) and material by 12.00p.m on 22 December 2017.2. The applicants file and serve their response to the affidavit(s) and material by 4.30p.m on 15 January 2018.3. The matter be listed for a further case management hearing and application for summary judgment on 14 February 2018 at 9.30a.m via video link from Sydney.4. The parties file written submissions on the issues relating to the summary judgment application by 4.30p.m on 9 February 2018.5. Costs reserved.