Lambourne v Baker [2021] NSWCA 229

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lambourne v Baker [2021] NSWCA 229 Hearing dates: 23, 24 June 2021 Date of orders: 24 September 2021 Decision date: 24 September 2021 Before: Basten and Gleeson JJA at [1]; Emmett AJA at [33] Decision: Order that: 1. Judgment be entered in favour of the Third Appellant against the First Respondent in the sum of $210,249. 2. The appeal be otherwise dismissed. 3. The appellants further amended notice of motion filed on 23 June 2021 be dismissed. 3. There be no order as to costs in respect of the appeal and the proceedings below. 4. The parties may seek to reopen Order 3 by a notice of motion filed within 14 days in the ordinary course. 5. The record be altered to show that the name of the Third Respondent has been changed to "Betmakers Technology Group Limited". Catchwords: CIVIL PROCEDURE — pleadings — implied abandonment — certain pleadings not expressly raised during trial — supporting evidence admitted — forensic decision by respondent to leave evidence unopposed — pleading unaddressed by primary judge — self-represented litigant — whether pleadings abandoned or merely overlooked in course of proceedings — remedy sought on appeal EQUITY — equitable remedies — equitable compensation — availability — misappropriation of company funds by director — moneys applied for personal uses — recovery of moneys by company EQUITY — fiduciary duties — breach — rule in Barnes v Addy — whether evidence of breach by primary wrongdoer established Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 18, 236 Corporations Act 2001 (Cth), ss 79, 180, 181, 182, 183, 1317H Cases Cited: Atkins v National Australia Bank (1994) 34 NSWLR 155 Barnes v Addy (1874) LR 9 Ch App 244 Brunninghausen v Glavanics (1999) 46 NSWLR 538; [1999] NSWCA 199 Texts Cited: Nil Category: Principal judgment Parties: Marc Alan Lambourne (First Appellant) Glenn Craig Pollett (Second Appellant) The Punters Show Pty Limited ACN 147 950 016 (Third Appellant) Dallas Matthew Baker (First Respondent) Todd Cameron Buckingham (Second Respondent) Betmakers Technology Group Limited ACN 164 521 395 (formerly TopBetta Holdings Limited) (Third Respondent) 12Follow Pty Limited ACN 136 345 536 (Fourth Respondent) Operis Momentus Pty Limited ACN 153 419 115 (Fifth Respondent) Representation: Counsel: First Appellant (self-represented and with leave of the Court, on behalf of the Second and Third Appellants) P Silver (Respondents)