Global Partners Fund Limited v Babcock & Brown Limited (In Liquidation) [2010] NSWSC 270

New South Wales Supreme Court

CITATION : Global Partners Fund Limited v Babcock & Brown Limited (In Liquidation) [2010] NSWSC 270

HEARING DATE(S) : 15,16,17,18 & 24 March 2010

JUDGMENT DATE : 12 April 2010

JUDGMENT OF : Hammerschlag J

DECISION : Plaintiff's motion dated 12 February 2010 is dismissed. The proceedings against the second defendant are dismissed. The Summons against the third and fourth defendants is set aside.

CATCHWORDS : CORPORATIONS – EQUITY – CONTRACT – PRIVATE INTERNATIONAL LAW – PRACTICE AND PROCEDURE – Corporations Act 2001 (Cth) s 500(2) – a newly appointed General Managing Partner incorporated in the Cayman Islands of a limited partnership registered in England commenced proceedings in this Division against the former General Managing Partner and three other entities in the Babcock & Brown Group claiming damages for breach of fiduciary duties owed to the partnership and for breach of duty of care – the first of those other entities (an Australian corporation) is in liquidation and the proceedings were commenced without the necessary statutory leave – leave was opposed by the liquidators – requirements for leave and whether it should be granted in this case – the former General Managing Partner (the fourth defendant in these proceedings) which is incorporated in the Cayman Islands commenced proceedings in England for monies allegedly owed to it under the Partnership Agreement – one of the two other entities sued in this Court (the second defendant) is an Australian corporation, the other is a limited partnership in Delaware – they are also plaintiffs in the English proceedings claiming declaratory relief – the plaintiffs in the English proceedings (the second, third and fourth defendants here) brought motions to set aside the summons against them, to set aside service, to dismiss the proceedings or to stay them – PRACTICE AND PROCEDURE – summary dismissal and striking out – whether plaintiff's case should be struck out as not disclosing a cause of action or as embarrassing - EQUITY – standing of the plaintiff to sue for damages suffered by "the Partnership" – CONTRACT – Partnership Agreement contains covenant consenting to the exclusive jurisdiction of the English courts – construction and operation of the provision – PRIVATE INTERNATIONAL LAW – forum non conveniens – whether this jurisdiction is clearly inappropriate for the proceedings