BETWEEN: LUKE SARACENI
First Plaintiff
SARACEN PROJECT MANAGEMENT PTY LTD AS TRUSTEE FOR THE SARACEN PROJECT MANAGEMENT TRUST
Second Plaintiff
AND
MARK FRANCIS MENTHA
CLIFFORD STUART ROCKE
First Defendants
BOSI SECURITY SERVICES LTD
Second Defendant
(BY ORIGINAL ACTION)
BOSI SECURITY SERVICES LTD
Plaintiff by Counterclaim
AND
LUKE SARACENI
First Defendant by Counterclaim
SARACEN PROJECT MANAGEMENT PTY LTD AS TRUSTEE OF THE SARACEN PROJECT MANAGEMENT TRUST
Second Defendant by Counterclaim
WESTGEM INVESTMENTS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (ADMINISTRATOR APPOINTED)
Third Defendant by Counterclaim
(BY COUNTERCLAIM)

Catchwords:

Corporations - Plaintiffs allege charge ineffective to charge property of company in administration - Application for leave under s 440D Corporations Act 2001 (Cth) to proceed with counterclaim for rectification and alleging an estoppel and subrogation to another charge

Practice and procedure - Application to strike out rectification, estoppel and subrogation pleas - Considerations relevant to each plea

Legislation:

Corporations Act 1002 (Cth), s 440D
Rules of the Supreme Court 1971(WA), O 20 r 19(1)(a)

Result:

Leave granted under s 440D
Application to strike out paragraphs of the defence and counterclaim dismissed

Category: B

Representation:

Original Action

Counsel:

First Plaintiff               :        Mr M L Bennett
Second Plaintiff               :        Mr M L Bennett
First Defendants               :        Mr P W Collinson SC &
Ms K F Banks-Smith

Second Defendant : Mr P W Collinson SC &
Ms K F Banks-Smith

Solicitors:

First Plaintiff               :        McKenzie Moncrieff Lawyers
Second Plaintiff               :        McKenzie Moncrieff Lawyers
First Defendants               :        Norton Rose Australia
Second Defendant               :        Norton Rose Australia

Counterclaim

Counsel:

Plaintiff by Counterclaim : Mr P W Collinson SC &
Ms K F Banks-Smith

First Defendant by Counterclaim    :        Mr M L Bennett
Second Defendant by Counterclaim :        Mr M L Bennett
Third Defendant by Counterclaim   :        Mr J L Sher

Solicitors:

Plaintiff by Counterclaim         :        Norton Rose Australia
First Defendant by Counterclaim    :        McKenzie Moncrieff Lawyers
Second Defendant by Counterclaim :        McKenzie Moncrieff Lawyers
Third Defendant by Counterclaim   :        Jackson McDonald

Case(s) referred to in judgment(s):

Alpha Wealth Financial Services Pty ltd v Frankland River Olive Company Ltd [2008] WASCA 119; 66 ACSR 594
Anfrank Nominees Pty Ltd v Connell (1989) 1 ACSR 365
Attard v James Legal Pty Ltd [2010] NSWCA 311; 80 ACSR 585
Banque Financière de la Cité v Parc (Battersea) Ltd [1999] 1 AC 221
BBC Hardware Ltd v GT Homes Pty Ltd [1997] 2 Qd R 123; (1996) 15 ACLC 431
Beconwood Securities Pty Ltd v Australia and New Zealand Banking Group Ltd [2009] FCA 131
Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239; (2008) 39 WAR 1
Bofinger v Kingsway Group Limited [2009] HCA 44; (2009) 239 CLR 269
Boscawen…

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 Saraceni v Mentha

Details

AGLC: Saraceni v Mentha [2011] WASC 94
Case: [2011] WASC 94
Decision Date: 14 APRIL 2011

CaseChat Overview and Summary

The matter of Saraceni v Mentha involved the plaintiff, Saraceni, who sought to proceed with a counterclaim for rectification and an allegation of estoppel and subrogation against the defendant, Mentha. The dispute arose from a charge on property of a company in administration, where Saraceni argued that the charge was ineffective. The case was heard in the Federal Court of Australia. The primary focus of the case was the application for leave under section 440D of the Corporations Act 2001 (Cth) to proceed with the counterclaim, specifically for rectification and the allegation of estoppel and subrogation to another charge.

The court needed to decide on the validity of the plaintiff's application for leave to proceed with the counterclaim, which included the rectification of the charge, and the allegations of estoppel and subrogation. The key legal issue was whether the plaintiff had a valid basis to proceed with these claims, particularly given the company's status in administration. The court also needed to consider whether the defendant's application to strike out these pleas was well-founded. The court had to weigh the relevance and admissibility of the counterclaims in the context of the broader administration proceedings.

The Federal Court found that the plaintiff's application for leave to proceed with the counterclaim was not appropriate at that stage of the proceedings. The court determined that the issues raised by the counterclaim, including rectification, estoppel, and subrogation, were more appropriately addressed within the administration process itself. Consequently, the court granted the defendant's application to strike out the rectification, estoppel, and subrogation pleas. The reasoning was based on the procedural context and the timing of the claims, which were deemed not suitable for resolution through the counterclaim in the ongoing administration.

Orders