In the matter of Dungowan Manly Pty Ltd (in liquidation) [2014] NSWSC 1721

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Dungowan Manly Pty Ltd (in liquidation) [2014] NSWSC 1721 Hearing dates: 23 October 2014, 25 November 2014 (mention) Decision date: 02 December 2014 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Leave granted to applicants to file an Amended Cross-Claim, limited to specific relief and matters pleaded. Leave granted to applicants to bring claim for specified relief and matters pleaded in Amended Cross-Claim as a derivative claim on behalf of the company, subject to the providing of a written indemnity in favour of the company, and other relevant conditions. Leave granted to applicants to appear on behalf of the company in the proceedings without retaining a solicitor. Directions made in respect of the filing and serving of pleadings, further evidence, evidential objections and submissions. Matter listed for hearing on 10-13 March 2015. Liberty granted to parties on 3 days' notice. Costs reserved. Catchwords: CORPORATIONS - membership, rights and remedies - derivative action - application for grant of leave by shareholder to bring proceedings in name of company in liquidation under inherent jurisdiction - whether the proposed cross-claim has some solid foundation - whether proceedings present reasonable prospects of success - attitude of liquidator - practical considerations - whether leave should be granted on terms that company be indemnified against costs - case management - whether leave should be granted to applicants to conduct proceedings without assistance of a solicitor. Legislation Cited: - Civil Procedure Act 2005 (NSW) s 56 - Corporations Act 2001 (Cth) ss 232, 477(6), 479(3), 511, Pt 2F.1A - Uniform Civil Procedure Rules 2005 (NSW) r 7.1 Cases Cited: - Brunninghausen v Glavanics [1999] NSWCA 199; (1999) 46 NSWLR 538 - Cadima Express Pty Ltd (in liq) v Deputy Commissioner of Taxation [1999] NSWSC 1143; (1999) 33 ACSR 527 - Carpenter v Pioneer Park Pty Ltd [2008] NSWSC 551; (2008) 71 NSWLR 577 - Chahwan v Euphoric Pty Ltd (trading as Clay & Michel) [2008] NSWCA 52; (2008) 245 ALR 780 - Dungowan Manly Pty Ltd v McLaughlin [2012] NSWCA 180; (2012) 90 ACSR 62 - Dungowan Manly Pty Ltd v McLaughlin (No 2) [2012] NSWCA 258 - McLaughlin v Dungowan Manly Pty Limited [2010] NSWSC 89 - McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 187 - McMurtrie v Commonwealth of Australia [2006] NSWCA 148 - Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 - Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) - Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 64; (2014) 97 ACSR 581 - Re Staway Pty Ltd (in liquidation) (receivers and managers appointed) [2013] NSWSC 819 - Scarel Pty Ltd v City Loan & Credit Corporation Pty Ltd (Supreme Court (NSW), Bryson J, 10 December 1987, unrep) - Spies v R [2000] HCA 43; (2000) 201 CLR 603 Category: Interlocutory applications Parties: Adam Farnsworth and Adam Shepard (in their capacity as joint and several liquidators of Dungowan Manly Pty Ltd (First Plaintiff) Dungowan Manly Pty Ltd (in liq) (Second Plaintiff) Patrick McLaughlin (First Defendant) Jennifer McLaughlin (Second Defendant) Turner Freeman Lawyers (Third Defendant) Loafer Pty Ltd, Garmen Pty Ltd and P and L Brown (Respondents to Interlocutory Process) Representation: Counsel: S Golledge (Plaintiffs) P D McLaughlin (in person) J T McLaughlin (in person) S J Philips (Third Defendant) B K Nolan (Loafer Pty Ltd and Garmen Pty Ltd) R Ross (sol) (P and L Brown) Solicitors: Somerset Ryckmans (Plaintiffs) P D McLaughlin (self-represented) J T McLaughlin (self-represented) Turner Freeman (Third Defendant) Harris & Co (Loafer Pty Ltd and Garmen Pty Ltd) Gavin Parsons & Associates (P and L Brown) File Number(s): 2013/204311