Noun v Pavey [2012] NSWSC 1644

Supreme Court New South Wales

Medium Neutral Citation: Noun v Pavey [2012] NSWSC 1644 Hearing dates: 9 October 2012 Decision date: 12 December 2012 Jurisdiction: Equity Division Before: Gzell J Decision: Appeal allowed; decision of Macready AsJ on 7 August 2012 set aside; cross-claim dismissed with costs below and of appeal. Catchwords: PROCEDURE - Summary Termination - appeal from Associate Justice - cross-claim against former director by sole director of company that owned intellectual property in a breast cancer test - misrepresentation that a doctor - cross-claimant paid costs of investigation into former director's qualifications, US attorney fees to advise cross-claimant and company to correct misrepresentation that a doctor in presentations to US Food and Drug Administration and a potential collaborator, to draft a shareholder agreement and to negotiate a purchase of shares in the company - advices on behalf of company - leave required under the Corporations Act 2001 (Cth), s 236 - no reasonable cause of action - no leave to replead - company could sue - s 237(2)(a) could not be established - no principle that loss sustained after discovery of falsity of conduct irrecoverable under Australian Consumer Law, s 18 Legislation Cited: Competition and Consumer Act 2010 (Cth) Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Agius v State of New South Wales [2001] NSWCA 371 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gould v Vaggelas (1985) 157 CLR 215 La Trobe Asset Management Australia Pty Ltd v Hajar [2009] NSWSC 1413 Kizbeau Pty Ltd v W G & B Pty Ltd (1995) 184 CLR 281 Maher v Honeysett & Maher Electrical Contractors [2005] NSWSC 859 Murphy v Overton Investments Pty Ltd [2004] HCA 3; (2004) 216 CLR 388 Mutual Life & Citizens' Assurance Co Ltd v Evatt (1970) 122 CLR 628 Penthouse Publications Ltd v McWilliam (Court of Appeal, 14 March 1991, unreported) Thompson v Ice Creameries of Australia Pty Ltd (1998) ATPR 41-611 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Category: Procedural and other rulings Parties: Tony Hassan Noun (First plaintiff/ Cross-defendant) THN Pty Ltd (Second plaintiff) Margaret Anne Pavey (First defendant) Alexander McIntyre Steward Kennedy (Second defendant/ Cross-claimant) Mark Melbourne (Third defendant) Representation: Counsel: CJ Bevan (Appellant/ Cross-defendant) S Lawrance (Respondent/ Cross-claimant) Solicitors: Turner Freeman (Appellant/ Cross-defendant) Banki Haddock Fiora (Respondent/ Cross-claimant) File Number(s): SC 2012/93374