Pioneer Construction Materials Pty Ltd v Schoch

[2007] QDC 143

DISTRICT COURT OF QUEENSLAND

CITATION:

Pioneer Construction Materials Pty Ltd v Schoch and Ors [2007] QDC 143

PARTIES:

PIONEER CONSTRUCTION MATERIALS PTY LTD

Plaintiff

V

WILLIAM MATTHEW SCHOCH

First Defendant

AND

MARTIN RONALD PERKINS

Second Defendant

AND

TERENCE MICHAEL BYRNE

Third Defendant

AND

RICHARD BOWYER THIELE

Fourth Defendant

AND

JAMES CHARLES MASSARD

Fifth Defendant

FILE NO/S:

BD3175/03

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

25 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

8 September 2006

JUDGE:

McGill DCJ

ORDER:

Judgment that the counterclaim of the first, second third and fifth defendants against the plaintiff and an additional defendant by counterclaim be dismissed with costs; order that all or parts of the defence of the first, second, third and fifth defendants be struck out; application otherwise dismissed.

CATCHWORDS:

CORPORATIONS LAW – Directors’ liabilities – insolvent trading – when debts incurred – whether company insolvent – whether statutory defences available – summary judgment refused.

TRADE PRACTICES – Misleading and deceptive conduct – representations as to amounts due and payable, and as to time to pay – whether misleading – whether any loss shown – summary judgment.

Corporations Act 2001 (C’w’th) ss 588G, 588M, 588H(2), (3), (5), 1317S, 1318.

COUNSEL:

M. J. Luchich for the plaintiff

L. D. Bowden for the first, second, third, and fifth defendants

SOLICITORS:

Patane Lawyers for the plaintiff

The first, second, third, and fifth defendants were not represented

1. In this action, the plaintiff seeks to recover a debt from a number of individuals, who were directors of a company which incurred the debt at the time it was incurred, which company has subsequently gone into liquidation. The claim is brought pursuant to s 588M of the Corporations Act 2001 (“the Act”), on the basis that the company was insolvent at the time the debt was incurred. The application was not pursued against the fourth defendant; the other defendants are disputing liability under that Act, and have also counterclaimed under the Trade Practices Act 1974, alleging breaches of ss 51A, 52, 53(g) and 69 against the plaintiff, and also seeking relief pursuant to s 75B against another defendant by counterclaim, a person who is alleged to have been knowingly involved in the contraventions by the plaintiff.

1. By this application, the plaintiff seeks summary judgment in its action against the defendants under rule 292, and the plaintiff and the other defendant to the counterclaim seek summary judgment on the counterclaim pursuant to rule 293, or in the alternative that the defence and counterclaim of the defendants be struck out under rule 171, or that parts of the defence and counterclaim be struck out under rule 162.

1. Section 588G of the Act provides that if a company is insolvent at a time when the company incurs a debt, or becomes insolvent by incurring that debt, and at the time there are reasonable grounds for suspecting that the company is insolvent or would so become insolvent, a director of the company at the time who is aware that there…