In the matter of Dungowan Manly Pty Ltd (in liquidation) [2014] NSWSC 856

In the matter of Dungowan Manly Pty Ltd (in liquidation) [2014] NSWSC 856

The Court would not grant leave for proposed amendments that lacked specificity, were not seriously arguable, sought relief against non-parties without proper joinder, or appeared to reopen matters already determined. However, the claims concerning shareholders' alleged obligations under the share surrender agreements and articles of association to meet the judgment and costs were seriously arguable and substantially overlapped with issues already arising in the proceedings concerning the Property and possible trusts. Subject to Mr and Mrs McLaughlin joining relevant shareholders and the Court being satisfied after further submissions that they should have leave to bring a derivative...

Jurisdiction
Australia
Judgment Date
26 June 2014
Procedural Posture
Corporations List Application for Directions Under Ss 479(3) and 511 of the Corporations Act 2001 (cth) and Application for Leave to File Amended Cross Claim / Interlocutory Applications
Outcome
Parties to be heard as to any orders to give effect to the judgment and issues as to the future conduct of the proceedings.
Legal Topics
['leave to Amend Cross Claim' 'joinder of Additional Parties' 'derivative Proceedings' 'share Surrender Agreements' 'constructive or Resulting Trust' 'liquidator Directions' 'case Management' 'just, Quick and Cheap Resolution of Proceedings']
['civil Procedure' 'corporations' 'equity' 'insolvency'] ['leave to Amend Cross Claim' 'joinder of Additional Parties' 'derivative Proceedings' 'share Surrender Agreements' 'constructive or Resulting Trust' 'liquidator Directions' 'case Management' 'just, Quick and Cheap Resolution of Proceedings']

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Procedural Posture

Corporations List Application for Directions Under Ss 479(3) and 511 of the Corporations Act 2001 (cth) and Application for Leave to File Amended Cross Claim / Interlocutory Applications

Legal Issues

  1. 1 ['Whether leave should be granted to file an amended cross-claim.' 'Whether proposed pleadings stated the claims with sufficient clarity.' 'Whether parts of the proposed amended cross-claim sought to reagitate matters previously addressed in appellate proceedings.' 'Whether proposed claims against shareholders and directors were seriously arguable as a matter of law.' 'Whether claims under share surrender agreements and articles of association should be permitted in these proceedings notwithstanding delay and joinder of additional parties.' "Whether leave should be granted for Mr and Mrs McLaughlin to pursue a derivative claim in the Company's name."]

Ratio Decidendi

The Court would not grant leave for proposed amendments that lacked specificity, were not seriously arguable, sought relief against non-parties without proper joinder, or appeared to reopen matters already determined. However, the claims concerning shareholders' alleged obligations under the share surrender agreements and articles of association to meet the judgment and costs were seriously arguable and substantially overlapped with issues already arising in the proceedings concerning the Property and possible trusts. Subject to Mr and Mrs McLaughlin joining relevant shareholders and the Court being satisfied after further submissions that they should have leave to bring a derivative...

Court Disposition

Parties to be heard as to any orders to give effect to the judgment and issues as to the future conduct of the proceedings.

Orders

  • ['Turner Freeman is directed to provide a copy of this judgment to the Federal Circuit Court of Australia, and any other Court that may be hearing any aspect of its bankruptcy proceedings brought against Mr and Mrs McLaughlin, and specifically draw its attention to the judgment generally and paragraph 54...