Lykouressis v Lykouresis & Ors [2009] NSWSC 80

New South Wales Supreme Court

CITATION : Lykouressis v Lykouresis & Ors [2009] NSWSC 80

HEARING DATE(S) : 2 to 5 February 2009

JUDGMENT DATE : 26 February 2009

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : Judgment for Plaintiff against First Defendant; judgment for Third, Fourth and Fifth Defendants.

CATCHWORDS : DECEIT – First Defendant induced deceased to lend money to company to start a business when First Defendant had no intention that company would carry on business – First Defendant withdrew loan monies from company for benefit of himself and family. - HELD: First Defendant liable in deceit. - DIRECTORS' DUTIES – First Defendant breached statutory and equitable duties as director – DERIVATIVE CLAIM – LEAVE TO PROCEED – administratrix of deceased's estate sought leave under CA s 237 to bring suit in company's name against First Defendant's family who had withdrawn money from company's account – relief sought related only to status of administratrix as secured creditor of company, not to status as shareholder. - HELD: Application for leave not "in good faith" – leave refused. - COSTS: successful Defendants were guilty of dishonest conduct – claim against them failed only because Plaintiff had not appointed receiver who could have sued in company's name without leave – successful Defendants deprived of costs order.

LEGISLATION CITED : Corporations Act 2001 (Cth) – s 180(1), s 181(1), s 182(1), s 237, s 420, s 1317H

CATEGORY : Principal judgment

- Antoun v R [2006] HCA 2 - Barnes v Addy (1874) LR9ChApp 244 - Cesan v The Queen (2008) 83 ALJR 43 - Chahwan v Euphoric Pty Ltd (2008) 65 ACSR 661 - Derry v Peek (1889) 14 App Cas 337 - Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 - Galea v Galea (1990) 19 NSWLR 263 - Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298 - Jones v Dunkel (1959) 101 CLR 298 CASES CITED : - McLean v Lake Como Venture Pty Ltd [2004] 2 Qd R 280 - Maher v Honeysett & Maher Electrical Contractors Pty Ltd [2005] NSWSC 859 - Malouf v Malouf [2006] NSWCA 83 - Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 - North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 - Reg v Watson; ex parte Armstrong (1976) 136 CLR 248 - South Johnstone Mill Ltd v Dennis [2007] FCA 1448, 64 ACSR 447 - Spies v R (2000) 201 CLR 603 - Swansson v R.A. Pratt Properties Pty Ltd (2002) 42 ACSR 313 - Vakauta v Kelly (1989) 167 CLR 568 - Walker v Wimborne (1976) 137 CLR 1