McLaughlin v Dungowan Manly Pty Limited [2010] NSWSC 89

McLaughlin v Dungowan Manly Pty Limited [2010] NSWSC 89

Leave to re-open was granted because the evidence was fresh, was not available to the plaintiffs at the hearing, no deliberate forensic choice not to adduce it was shown, no embarrassment or prejudice from admission was identified, and it had potential relevance and probative value at least to the assessment of damages and relief. Interlocutory injunctive relief was refused because the plaintiffs did not establish a real risk sufficient for Mareva-type relief that the proposed strata title and share surrender arrangements would prevent enforcement of any judgment; the company had proposed arrangements preserving claims against former members for liabilities, including litigation...

Jurisdiction
Australia
Judgment Date
18 February 2010
Procedural Posture
Notice of Motion in Equity Division Proceedings Concerning Alleged Breach of Contract, Oppression, and Proposed Derivative Proceedings / Application Before Final Judgment for Leave to Re Open and for Interlocutory Injunctive Relief
Outcome
Application to re-open granted. Notice of motion otherwise dismissed.
Legal Topics
['leave to Re Open Before Judgment' 'fresh Evidence' 'mareva Order' 'oppressive Conduct' 'derivative Suit' 'strata Title Redevelopment' 'balance of Convenience']
['practice and Procedure' 'equity' 'corporations' 'injunctions'] ['leave to Re Open Before Judgment' 'fresh Evidence' 'mareva Order' 'oppressive Conduct' 'derivative Suit' 'strata Title Redevelopment' 'balance of Convenience']

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Procedural Posture

Notice of Motion in Equity Division Proceedings Concerning Alleged Breach of Contract, Oppression, and Proposed Derivative Proceedings / Application Before Final Judgment for Leave to Re Open and for Interlocutory Injunctive Relief

Legal Issues

  1. 1 ['Whether the hearing should be re-opened to admit further evidence that came into existence after the hearing and before judgment.' 'Whether the further evidence was sufficiently relevant and probative, particularly to assessment of damages and relief for alleged oppression.' 'Whether interlocutory relief should restrain the defendant and its directors from releasing strata titles, enforcing levies, completing share purchases or making payments to a director.' "Whether there was a real risk that the defendant's proposed dealings with strata titles and share surrenders would frustrate any judgment in favour of the plaintiffs." 'Whether the balance of convenience favoured granting Mareva-type interlocutory relief.']

Ratio Decidendi

Leave to re-open was granted because the evidence was fresh, was not available to the plaintiffs at the hearing, no deliberate forensic choice not to adduce it was shown, no embarrassment or prejudice from admission was identified, and it had potential relevance and probative value at least to the assessment of damages and relief. Interlocutory injunctive relief was refused because the plaintiffs did not establish a real risk sufficient for Mareva-type relief that the proposed strata title and share surrender arrangements would prevent enforcement of any judgment; the company had proposed arrangements preserving claims against former members for liabilities, including litigation...

Court Disposition

Application to re-open granted. Notice of motion otherwise dismissed.

Orders

  • ["Leave granted for the hearing to be re-opened in order to tender the defendant's letters of 4 and 25 January 2010 and the material otherwise tendered on the application." 'The admitted evidence is to be formally marked as an exhibit in the proceedings.' "Other than in relation to the re-opening of the proceedings,...