FEDERAL COURT OF AUSTRALIA

Rangott v Pilor Pty Ltd [2005] FCA 1909

WILLIAM BALFOUR RANGOTT v PILOR PTY LIMITED, JANELLE ROCHE, PIA SERVICES PTY LTD, MAYHEM GAMES PTY LTD, FAIRCHROME PTY LTD, MANO MANAGEMENT PTY LTD, MARK & NOORAINI BLUMER, IPAQ PTY LTD, KEN OWEN, SANETH WEERATNE, CRDT PTY LTD AND AAR INVESTMENTS PTY LTD

QUD 137 of 2005

DOWSETT J

21 OCTOBER 2005

BRISBANE

THE COURT ORDERS THAT:

1.         The statement of claim as against the sixth and seventh respondents be struck out.

2.         The applicant pay the costs of the sixth and seventh respondents incurred as a consequence of the delivery of the statement of claim in its present form and the costs of the motion.

3.         The statement of claim as against the ninth respondent, be struck out, with leave to re-plead. 

4.         Costs as between the applicant and the ninth respondent be reserved.

5.         The statement of claim as against the tenth respondent be struck out.

6.         The applicant pay the tenth respondent’s costs thrown away as a consequence of delivery of the statement of claim and of the motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The statement of claim as against the sixth and seventh respondents should be struck out.  The claim as against them seems to be a hybrid and owes something to application of the doctrine of tracing.  Its thrust is an allegation that funds, which the Trustee in Bankruptcy now claims, were advanced to a company called PIA Services, the third respondent, which lent them to the sixth and seventh respondents, that being done on 30 June 2003.  It is said that those funds were then paid to IPAQ, the eighth respondent, to satisfy obligations undertaken by Mano Management, the sixth respondent, and that such payment was made on 5 June.  It is then said that on that same date, 5 June, IPAQ paid the money to another company.  Clearly, if the funds were advanced on 30 June, they could not have been paid out on 5 June as alleged in the statement of claim.  For that reason, the statement of claim does not make sense.

2                     On Wednesday of this week, it was suggested that all of these transactions may have occurred at about the same time.  However that is not the case pleaded.  The pleader appears to have included in this aspect of the statement of claim paragraphs which relate to the trustee’s claim to entitlement to funds in the hands of PIA Services.  Pleading those facts in proximity to the case against the sixth and seventh respondents has led to a certain degree of confusion.  However when the problem with dates, to which I have referred is taken into account, it makes the pleading virtually indefensible.

3                     It seems that the true claim, if any, against the sixth and seventh respondents is in debt, although it may have been necessary to join other parties because any such claim may depend upon assignment, and/or the setting aside of transactions under the Bankruptcy Act 1966 (Cth) and/or application of the doctrine of tracing.  Nonetheless it seems to me that it is impossible for the sixth and seventh respondents to plead to the statement of claim in its present form.  It would be vexatious to compel them to do so. 

4                     In those circumstances, I consider that the statement of claim should be struck out.  I also consider that the sixth and seventh respondents should have the costs of the proceedings to the extent to which they have been thrown away to date.  I order that the applicant pay the costs of the sixth and seventh respondents incurred as a consequence of the delivery of the statement of claim in its present form and the costs of the motion.

5                     As against the ninth respondent, the statement of claim will be struck out.  There will be leave to re-plead.  Costs are reserved.

6                     The statement of claim as against the 10th respondent will be struck out.  I order the applicant to pay the tenth respondent’s costs thrown away as a consequence of delivery of the statement of claim and of the motion.

Associate:

Dated:              23 December 2005