McEvoy v Caplan [2010] NSWCA 115

Reported Decision: 78 ACSR 167

New South Wales Court of Appeal

CITATION: McEvoy v Caplan [2010] NSWCA 115 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 May 2010

JUDGMENT DATE: 25 May 2010

JUDGMENT OF: Allsop P at 1; Beazley JA at 2; Macfarlan JA at 3

(1) The appeal is dismissed as incompetent; DECISION: (2) Mr McEvoy is refused leave to appeal; and (3) Order that Mr McEvoy pay the costs of the respondents in relation to the proceedings in this Court.

CATCHWORDS: CORPORATIONS - statutory derivative action - application under s 237 Corporations Act 2001 (Cth) for leave to bring proceedings on behalf of two companies by way of cross-claim - grant of application would have given rise to conflict of duties - grant of leave not in the best interests of the companies - APPEAL - whether appeal lies as of right - order dismissing application under s 237 Corporations Act 2001 (Cth) for leave to bring proceedings on behalf of two companies - statutory derivative action - lower court decision interlocutory - leave to appeal required

LEGISLATION CITED: Corporations Act 2001 (Cth) Supreme Court Act 1970

CATEGORY: Principal judgment

Carr v Finance Corporation of Australia Ltd [1981] HCA 20; (1981) 147 CLR 246 CASES CITED: Licul v Corney [1976] HCA 6; (1976) 180 CLR 213 Malouf v Malouf [1999] FCA 284; (1999) 86 FCR 134

John Albert Christopher McEvoy (Appellant) Benjamin Saul Caplan (First Respondent) Phillip William Leslie (Second Respondent) PARTIES: Warren Richard Lesnie (Third Respondent) Metro Hotel Sydney Pty Ltd (Fourth Respondent) Transmetro Corporation Ltd (Fifth Respondent) Kol Tov Pty Ltd (Sixth Respondent) Kol Tov Operations Pty Ltd (Seventh Respondent)