Hillig v Darkinjung Pty Ltd & Ors [2007] NSWSC 683

New South Wales Supreme Court

CITATION : Hillig v Darkinjung Pty Ltd & Ors [2007] NSWSC 683

HEARING DATE(S) : 15/06/07

JUDGMENT DATE : 29 June 2007

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : White J

DECISION : 1. Order that the second to sixth defendants' Notice of Motion filed on 17 April 2007 be dismissed with costs; 2. direct the parties to bring in short minutes of order for the further conduct of the proceedings.

CATCHWORDS : PROCEDURE – Application for summary dismissal of proceedings sought on basis that not seriously arguable that defendants owed fiduciary duties to plaintiff or breached duties – Whether seriously arguable that imposition of certain statutory duties imposes fiduciary duties – Consideration of features of relationships which may give rise to fiduciary duties – Held that seriously arguable that, within statutory framework, voting members of a council who exercise voting rights may stand in fiduciary relationship with the council – Characterisation of duties as fiduciary or equitable – Held that characterisation of duties as fiduciary or equitable immaterial to question whether such duties owed and enforceable in equity – Application for summary dismissal of proceedings sought on basis that not seriously arguable that individual defendants' positions distinguishable from position of companies found not to be liable for knowing receipt of trust funds in separate but related proceedings – Where separate proceedings did not determine knowledge of individual defendant parties to these proceedings – Where evidence to be adduced in present proceedings may not be the same evidence as that produced at separate proceedings – Held that it is seriously arguable that defendants may be liable on basis of matters alleged in present proceedings – Application dismissed. - PROCEDURE – Application to strike out amended points of claim – Whether lack of particularity in pleadings justifies order striking out amended points of claim – Held that pleading pleads material facts, discloses arguable cause of action and makes clear to the defendant the case the defendant has to meet – Application dismissed. - PROCEDURE – Application for stay of proceedings until certain other persons added as necessary parties – Whether all voting members of council must be joined in accordance with principle that all trustees are necessary parties in suit complaining of breach of trust – Held that where liability of voting member depends upon his or her individual intention or knowledge it would be inappropriate to join all voting members regardless of their intention – Application dismissed.