Milltec Australia Pty Ltd v Burnes & Anor [2006] NSWCA 13

Milltec Australia Pty Ltd v Burnes & Anor [2006] NSWCA 13

The appeal as of right was incompetent as the monetary threshold was not met, and claims for conversion and equitable compensation failed due to pleading and evidentiary deficiencies. However, the director was held accountable for profits made from diversion of a corporate opportunity, as the evidence established the claim for an account of profits, which was not precluded by any objection at trial.

Parties
Appellant: Milltec Australia Pty Ltd; First Respondent: Wayne Burnes; Second Respondent: Milling Process Services Pty Ltd
Jurisdiction
Australia
Judgment Date
13 February 2006
Procedural Posture
Appeal / Final Decision on Appeal and Leave Application
Outcome
Appeal as of right dismissed as incompetent; leave to appeal granted in part and allowed on limited grounds; orders made for an account of profits and costs apportioned.
Legal Topics
Appeal Competency, Conversion, Breach of Fiduciary Duty, Account of Profits
Equity Company Law Torts Appeal Competency Conversion Breach of Fiduciary Duty Account of Profits

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 7 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Milltec Australia Pty Ltd

Appellant

Wayne Burnes

First Respondent

Milling Process Services Pty Ltd

Second Respondent

Procedural Posture

Appeal / Final Decision on Appeal and Leave Application

Legal Issues

  1. 1 Whether the appeal as of right was competent based on the amount involved
  2. 2 Whether cross-claim for conversion was adequately pleaded and proved
  3. 3 Whether equitable compensation and account of profits were established

Ratio Decidendi

The appeal as of right was incompetent as the monetary threshold was not met, and claims for conversion and equitable compensation failed due to pleading and evidentiary deficiencies. However, the director was held accountable for profits made from diversion of a corporate opportunity, as the evidence established the claim for an account of profits, which was not precluded by any objection at trial.

Court Disposition

Appeal as of right dismissed as incompetent; leave to appeal granted in part and allowed on limited grounds; orders made for an account of profits and costs apportioned.

Orders

  • Appeal as of right dismissed as incompetent.
  • Leave to appeal granted limited to grounds 6 and 7 of the notice of appeal of 2 November 2004.