TW McConnell Pty Ltd as trustee for the McConnell Superannuation Fund v SurfStitch Group Ltd (administrators appointed); Nakali Pty Ltd v SurfStitch Group Ltd (administrators appointed) [2017] NSWSC 1755

Supreme Court New South Wales

Medium Neutral Citation: TW McConnell Pty Ltd as trustee for the McConnell Superannuation Fund v SurfStitch Group Ltd (administrators appointed); Nakali Pty Ltd v SurfStitch Group Ltd (administrators appointed) [2017] NSWSC 1755 Hearing dates: 11 December 2017 Decision date: 14 December 2017 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Common fund order should not be made at this stage Catchwords: PRACTICE AND PROCEDURE – representative proceedings – two overlapping shareholder open class actions against corporate defendant and in one case also against former officer of the corporate defendant – group members in each proceeding almost identical – claims made in both proceedings substantially the same – corporate defendant in administration – proceedings thus stayed against that defendant – no application in either proceedings for leave to proceed – administrators exploring means to deal within the external administration with claims of group members – whether common fund order should be made in one proceeding before those matters resolved and before decision made as to how in the best interests of group members the two cases are to proceed Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Federal Court of Australia Act 1976 (Cth) Cases Cited: McKay Super Solutions Pty Ltd (Trustee) v Bellamy's Australia Ltd [2017] FCA 947 Category: Procedural and other rulings Parties: In proceedings 2017/193375: TW McConnell Pty Ltd as trustee for the McConnell Superannuation Fund (Plaintiff) SurfStitch Group Ltd (administrators appointed) (First Defendant) Justin Peter Cameron (Second Defendant) Vannin Capital Operations Limited (First Intervenor) Nakali Pty Limited (Second Intervenor)