Barker, D.K. v Toscan, C.A. [1995] FCA 140

Barker, D.K. v Toscan, C.A. [1995] FCA 140

The statement of claim does not disclose any relevantly dishonest conduct in breach of section 232(2); in any event, breach of the statutory duty in section 232(2) does not give rise to an action for civil damages by the applicant, and the remedies available under the Corporations Law do not include those sought in this application. Accordingly, the application is misconceived and must be dismissed.

Parties
Applicant: Darryl Keith Barker; Respondent: Caroline Ann Toscan
Jurisdiction
Australia
Judgment Date
20 February 1995
Procedural Posture
Application / Strike Out Application / Final Judgment
Outcome
Application dismissed; costs awarded to respondent.
Legal Topics
Cause of Action, Directors’ Duties, Civil Penalties, Strike Out Applications
Practice and Procedure Corporations Law Cause of Action Directors’ Duties Civil Penalties Strike Out Applications

Case Brief

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Parties

Darryl Keith Barker

Applicant

Caroline Ann Toscan

Respondent

Procedural Posture

Application / Strike Out Application / Final Judgment

Legal Issues

  1. 1 Whether the statement of claim discloses a cause of action against the respondent for breach of duty under section 232(2) of the Corporations Law
  2. 2 Whether the remedy for breach of section 232(2) includes civil damages recoverable by the applicant

Ratio Decidendi

The statement of claim does not disclose any relevantly dishonest conduct in breach of section 232(2); in any event, breach of the statutory duty in section 232(2) does not give rise to an action for civil damages by the applicant, and the remedies available under the Corporations Law do not include those sought in this application. Accordingly, the application is misconceived and must be dismissed.

Court Disposition

Application dismissed; costs awarded to respondent.

Orders

  • The application filed on 26 September, 1994 be dismissed.
  • The applicant pay the respondent's costs of and incidental to the application, including the notice of motion filed herein by the respondent, to be taxed if not agreed.