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

Federal Court of Australia

Document text

CATCHWORDS PRACTICE AND PROCEDURE - Statement of claim disclosing no cause of action. CORPORATIONS LAW - Nature of duty under s.232(2) Corporations Law - whether remedy for breach includes civil damages. Corporations Law s.232(2), (6B), (11) Darryl Keith Barker v. Caroline Ann Toscan No. QG3024 of 1994 Cooper J., Brisbane, 21 February, 1995

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG3024 of 1994 IN THE MATTER OF CAROLINE ANN TOSCAN BETWEEN: DARRYL KEITH BARKER Applicant AND: CAROLINE ANN TOSCAN Respondent JUDGE MAKING ORDER: Cooper J. WHERE MADE: Brisbane DATE OF ORDER: 21 February, 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application filed on 26 September, 1994 be dismissed. 2. 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. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG 3024 of 1994 IN THE MATTER OF CAROLINE ANN TOSCAN BETWEEN: DARRYL KEITH BARKER Applicant AND: CAROLINE ANN TOSCAN Respondent CORAM: Cooper J. PLACE: Brisbane DATE: 21 February, 1995 REASONS FOR JUDGMENT This is an application by the respondent, Caroline Ann Toscan, to have struck out a statement of claim and to have the proceedings brought against her dismissed on the ground that the statement of claim discloses no cause of action. The applicant is a solicitor who brings the application seeking damages for an alleged breach of a duty imposed by section 232 of the Corporations Law. The statement of claim in essence alleges that the respondent was a director of a company Exelden Pty. Ltd., which company retained the solicitor to provide legal professional services in relation to litigation in the Supreme Court of Queensland. It is alleged that the solicitor engaged counsel and is entitled to receive a sum of approximately $36,000.00 by way of professional fees and disbursements. The company has not paid the solicitor's bill. The solicitor, however, does not appear to have sued the company for the fees allegedly due. Rather, he alleges that the company came into a sum of approximately $30,000.00 and that the respondent failed to procure the company to pay the bill, presumably, although the statement of claim does not say so, by utilising the $30,000.00 received by the company. The relevant duty provided for in section 232 of the Corporations Law is that contained in subsection (2), which reads :- "An officer of a corporation shall at all times act honestly in the exercise of his or her powers and the discharge of the duties of his or her office".

Read full text →

Official source

We try to embed the page this law was scraped from. If the site blocks framing, you still get the link and a local excerpt.

Not checked yet

Last checked with source on —

Open official source

Checking whether the official page can be embedded…

Study brief

Plain-English simplify of this law: a short summary, key points, and both sides of the argument. Generated on first view via Replicate, then cached. Vote on what helps your study.

Unknown

No study brief is cached for this law yet. Sign up to generate a plain-English brief.

You've got 21 of 22 free Acts left this visit. Sign up anytime for Facts, Related, and study briefs too.

Document text

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG3024 of 1994 IN THE MATTER OF CAROLINE ANN TOSCAN BETWEEN: DARRYL KEITH BARKER Applicant AND: CAROLINE ANN TOSCAN Respondent JUDGE MAKING ORDER: Cooper J. WHERE MADE: Brisbane DATE OF ORDER: 21 February, 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application filed on 26 September, 1994 be dismissed. 2. 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. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG 3024 of 1994 IN THE MATTER OF CAROLINE ANN TOSCAN BETWEEN: DARRYL KEITH BARKER Applicant AND: CAROLINE ANN TOSCAN Respondent CORAM: Cooper J. PLACE: Brisbane DATE: 21 February, 1995 REASONS FOR JUDGMENT This is an application by the respondent, Caroline Ann Toscan, to have struck out a statement of claim and to have the proceedings brought against her dismissed on the ground that the statement of claim discloses no cause of action. The applicant is a solicitor who brings the application seeking damages for an alleged breach of a duty imposed by section 232 of the Corporations Law. The statement of claim in essence alleges that the respondent was a director of a company Exelden Pty. Ltd., which company retained the solicitor to provide legal professional services in relation to litigation in the Supreme Court of Queensland. It is alleged that the solicitor engaged counsel and is entitled to receive a sum of approximately $36,000.00 by way of professional fees and disbursements. The company has not paid the solicitor's bill. The solicitor, however, does not appear to have sued the company for the fees allegedly due. Rather, he alleges that the company came into a sum of approximately $30,000.00 and that the respondent failed to procure the company to pay the bill, presumably, although the statement of claim does not say so, by utilising the $30,000.00 received by the company. The relevant duty provided for in section 232 of the Corporations Law is that contained in subsection (2), which reads :- "An officer of a corporation shall at all times act honestly in the exercise of his or her powers and the discharge of the duties of his or her office".

Read full text →