JUDGE:	Hansen J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 December 2002
DATE OF JUDGMENT:	29 May 2003
CASE MAY BE CITED AS:		Rambaldi v Dallbrook Pty Ltd
MEDIUM NEUTRAL CITATION:		[2003] VSC 163

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Corporations – Unfair preference – Voidable transaction – Insolvent transaction – Statement of claim – Leave to amend - Corporations Act 2001, ss 588FA, 588FE, 588FF

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S Whelan, QC with Mr P Crutchfield	Arnold Bloch Leibler
For the Defendant	Mr N Lucarelli, QC with Mr DJ Williams	Stamfords Lawyers

HIS HONOUR:

Introduction

This is an application for leave to amend the statement of claim in a proceeding commenced by originating process filed on 1 November 2001. The plaintiffs are Giuseppe Michele Rambaldi as liquidator of KC Parksafe (Vic) Pty Ltd ("KC Parksafe" or "the company"), and KC Parksafe, and the defendant is Dallbrook Pty Ltd ("Dallbrook"). The case has proceeded by way of pleadings. A statement of claim was filed on 13 November 2001 and a defence was filed on 10 December 2001. The claim is that between 5 May 1998 and 5 November 1998, when the company was insolvent, Dallbrook received from the company payments totalling $946,029.73 and which payments were unfair preferences. As each transaction was an insolvent transaction, the liquidator seeks an order under s 588FF(1)(a) of the Corporations Act 2001 (Cth) ("the Act") that Dallbrook pay the said amount to the company.

The amendment is to add a further four payments, made in the same period, totalling $341,796.14. One of the payments was made by KC Parksafe, while the other three were made by a related entity, KC Parksafe Treasury Pty Ltd ("Treasury"). The plaintiffs seek to recover these payments as unfair preferences.

In resisting the application to amend Dallbrook relied, in part, on s 588FF(3), which provides that an application under s 588FF(1)(a) may only be made within three years after the relation-back day. The Court has power under s 588FF(3)(b) to extend that time within the three year period. The relation-back day is, in the context of the liquidation, 5 November 1998, the day on which Rambaldi was appointed the administrator of KC Parksafe under s 436A of the Corporations Law ("the Law"). He became liquidator of KC Parksafe on 16 December 1998, when the creditors resolved that the company be wound up under s 439C of the Law. The relation-back date was not extended by an order under s 588FF(3)(b). Accordingly, the three year application period expired on 5 November 2001.

The case at present

As mentioned, the claim is that Dallbrook be ordered to pay $946,029.73 to KC Parksafe pursuant to s 588FF…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rambaldi v Dallbrook Pty Ltd

Details

AGLC: Rambaldi v Dallbrook Pty Ltd [2003] VSC 163
Case: [2003] VSC 163
Decision Date: 29 May 2003

CaseChat Overview and Summary

The proceedings arose between Rambaldi and Dallbrook Pty Ltd in the Federal Circuit Court of Australia. Rambaldi sought to recover funds from Dallbrook that were allegedly transferred under an unfair preference. The claim was brought under sections 588FA, 588FE, and 588FF of the Corporations Act 2001, which relate to voidable transactions and insolvent trading. Rambaldi sought leave to amend the statement of claim to include additional defendants and claims for relief.

The court needed to determine whether Rambaldi could amend the statement of claim to add further defendants and claims, and whether the proposed amendments were appropriate in the circumstances. The primary issue was whether the proposed amendments would allow the court to make a just and efficient resolution of the case. The court considered the relevant statutory provisions and case law to assess the appropriateness of the amendments.

The court found that the proposed amendments were acceptable as they related to parties and claims that were directly connected to the underlying dispute. The court noted that the amendments would not cause prejudice to Dallbrook and would allow for a comprehensive resolution of the issues at hand. The court exercised its discretion under the law to allow the amendments, ensuring that the proceedings could be resolved justly and efficiently. The court ordered that Rambaldi could amend the statement of claim as proposed.

Orders