Revian v Dasford Holdings Pty Ltd [2002] FCA 1119

Revian v Dasford Holdings Pty Ltd [2002] FCA 1119

The applicant and Grant William Thompson had entered Part X arrangements before commencing the proceeding and, under cl 14(a) of the GKDK Trust deed, thereby vacated office as trustees and lacked capacity to sue in that capacity. Section 33D(2) did not cure that defect because it only preserves standing where a representative party had sufficient interest at commencement and later ceases to have a claim. Nor was there any apparent sufficient interest as discretionary beneficiaries. The accessorial liability pleadings against the directors relied on bald assertions of actual knowledge, constructive knowledge or failure to prevent representations, without particulars establishing knowing...

Jurisdiction
Australia
Judgment Date
10 September 2002
Procedural Posture
Representative Proceeding Alleging Misleading or Deceptive Conduct, Negligent Mis Statement and Deceit in Relation to Shopping Centre Leases / Reasons for Judgment on Motion to Strike Out Action by Fourth Respondent
Outcome
Applicant removed as representative; first group members' claims struck out; accessorial involvement allegations against the third, fourth and fifth respondents struck out; proceedings dismissed as against the third, fourth and fifth respondents; liberty to apply to substitute another group member, failing which the...
Legal Topics
['standing and Sufficient Interest in Representative Proceedings' 'part X Deed of Arrangement' 'trustee Incapacity Under Deed of Trust' 'accessorial Liability Under Trade Practices Act' 'strike Out for No Reasonable Cause of Action']
['practice and Procedure' 'representative Proceedings' 'bankruptcy' 'trade Practices' 'trusts'] ['standing and Sufficient Interest in Representative Proceedings' 'part X Deed of Arrangement' 'trustee Incapacity Under Deed of Trust' 'accessorial Liability Under Trade Practices Act' 'strike Out for No Reasonable Cause of Action']

Case Brief

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Procedural Posture

Representative Proceeding Alleging Misleading or Deceptive Conduct, Negligent Mis Statement and Deceit in Relation to Shopping Centre Leases / Reasons for Judgment on Motion to Strike Out Action by Fourth Respondent

Legal Issues

  1. 1 ['Whether the applicant and Grant William Thompson, being subject to Part X arrangements under the Bankruptcy Act 1966 (Cth), lacked capacity to sue as trustees of the GKDK Trust because they had vacated office under the trust deed.' 'Whether s 33D(2) of the Federal Court of Australia Act 1976 (Cth) allowed the applicant to continue representative proceedings when she lacked sufficient interest at commencement.' 'Whether the applicant had a sufficient interest as a beneficiary of the discretionary GKDK Trust to bring or continue the proceeding.' 'Whether the substituted statement of claim disclosed a reasonable cause of action for accessorial involvement by the third, fourth and fifth respondents.']

Ratio Decidendi

The applicant and Grant William Thompson had entered Part X arrangements before commencing the proceeding and, under cl 14(a) of the GKDK Trust deed, thereby vacated office as trustees and lacked capacity to sue in that capacity. Section 33D(2) did not cure that defect because it only preserves standing where a representative party had sufficient interest at commencement and later ceases to have a claim. Nor was there any apparent sufficient interest as discretionary beneficiaries. The accessorial liability pleadings against the directors relied on bald assertions of actual knowledge, constructive knowledge or failure to prevent representations, without particulars establishing knowing...

Court Disposition

Applicant removed as representative; first group members' claims struck out; accessorial involvement allegations against the third, fourth and fifth respondents struck out; proceedings dismissed as against the third, fourth and fifth respondents; liberty to apply to substitute another group member, failing which the...

Orders

  • ['The applicant be removed as representative of the Group Members.' 'So much of the substituted statement of claim as relates to the causes of action asserted by the First Group Members be struck out.' 'So much of the substituted statement of claim as alleges the accessorial involvement of the third, fourth and...