Shannon v Simmons

SUPREME COURT OF QUEENSLAND

CITATION:

Shannon & Ors v Simmons [2020] QSC 115

PARTIES:

GLENN MICHAEL SHANNON, RICHARD ALBARRAN and BLAIR ALEXANDER PLEASH in their capacity as liquidators of W2R PTY LTD (IN LIQUIDATION) ACN 126 948 945

(first plaintiffs)

W2R PTY LTD (IN LIQUIDATION) ACN 126 948 945

(second plaintiff)

v

COREY SIMMONS
(defendant)

FILE NO:

12912/19

DIVISION:

Trial

PROCEEDING:

Application on the papers without oral hearing

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

13 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers.  Further submissions filed 15 April 2020.

JUDGE:

Flanagan J

ORDER:

Order as per draft, initialled by me and placed with the papers, with a correction to paragraph 1(c) to reflect interest payable to the date of judgment.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – JUDGMENT IN DEFAULT OF APPEARANCE – whether an application under r 288(2) of the Uniform Civil Procedure Rules 1999 (Qld) is required to be served on a respondent

CORPORATIONS – MANAGEMENT AND ADMINISTRATION – DUTIES AND LIABILITIES OF OFFICERS OF CORPORATION – OFFICERS OF INSOLVENT CORPORATIONS – DUTY TO PREVENT INSOLVENT TRADING – CONSEQUENCES OF BREACH – COMPENSATION AND REPARATION ORDERS – whether the applicants established an entitlement to compensation for loss resulting from insolvent trading

Uniform Civil Procedure Rules 1999 (Qld) r 282

Corporations Act 2001 (Cth) s 588G, s 588M

COUNSEL:

S T Lane for the plaintiffs

SOLICITORS:

Mills Oakley Lawyers for the plaintiffs

1. The first applicants are the liquidators of the second applicant, W2R Pty Ltd (W2R).  The respondent, Corey Simmons, was at all material times and remains the sole director of W2R. 

2. The applicants apply pursuant to r 288 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), for the following relief:

   (a)a declaration that the respondent failed to prevent debts in the sum of $7,107,109.49 being incurred by W2R in contravention of s 588G(2) of the Corporations Act 2001 (Cth);

   (b)the respondent pay the applicants the amount of $7,107,109.49 in accordance with s 588M of the Corporations Act;

   (c)the respondent pay to the applicants interest on the said sum pursuant to s 58 of the Civil Proceedings Act 2011 (Qld); and

   (d)costs of and incidental to the proceedings on the standard basis.

3. The applicants request that the application be heard on the papers pursuant to r 489 of the UCPR. The application has the following notation: “This application is not intended to be served on anyone”. The matter came before me in the applications list on 14 April 2020. The Court invited further submissions from the applicants as to whether an application to the court for a judgment pursuant to r 288(2) of the UCPR was required to be served. Further submissions addressing this issue were received on 15 April 2020.

4. For the reasons which follow, I am of the view that:

   (a)an application under r 288(2) is not required to be served on a respondent;

   (b)the application may appropriately be dealt with…