Australian Dancing Society Ltd. & Anor v Australian Dancing Board Company Ltd. & Ors Lonsdale, M. & Ors v Paul, L.

[1992] FCA 996

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996 w a

JUDGMENT NO. ..o.m.mna .m..m.m.m

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IN THE FEDERAL COURT OF AUSTRALIA	) )
VICTORIA DISTRICT REGISTRY	1 No VG 168 of 1991
GENERA& DIVISION	i

BETWEEN:  AUSTRALIAN DANCING SOCIETY LTD and
MARGARET LONSDALE

(Applicants) I

AND :  AUSTRALIAN DANCING BOARD COMPANY LTD.
LINDSAY PAUL. ROBERT WRIGHTSON,
FREDERICK JENYNS. DON KERSNOVSKA.
LESLIE NEWMAN. DES MATTHEWS.
LEONIE CLIVE-JONES. VINCENT BAIN.
ROBERT STEELE . and-AUSTRALIAN NATIONAL
AMATEUR DANCESPORT ASSOCIATION INC

(Respondents)

No VG 3259 of 1992

BETWEEN:  MARGARET MNSDALE . FREDERICK JENPNS and
THE AUSTRALIAN DANCING SOCIETY LTD

(Applicants)

AND:

(Respondents)

Coram:  Ryan J

W: Melbourne

proceedings No. VG 3259 of 1992. A similar notice of motion has	been filed on the same date in those later proceedings. By the
Date:	1 December 1992

EX TEMPORE lWASONS FOR JUDGMENT

Rvan J: By motion on notice filed on 19 November 1992, the applicants in proceeding No. VG 168 of 1991, Australian Dancing Society Ltd and Margaret Lonsdale, seek an order that those proceedings be tried at the same time as, or immediately after,

later proceedings, the same two applicants, together with Mr	i ~	1, .
Frederick Jenyns, seek orders that the Australian Dancing Board	i	l
Company Ltd ( " A D B " ) , be wound up under one or other of ss. 260,	I
460 and 461 of the Corporations Law.	I I
r
;
I am satisfied that the two proceedings raise a number of common	i
l
issues of fact, although those in the second application are	l	L
somewhat wider in compass than those in the first application.	t

A

The first proceedings have been set down for trial commencing on

15 February 1993. Five days have been allocated to that hedkng, - -, .:

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and, from what I have heard in the course of the present moti6ns,- . . .,

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I entertain grave doubts whether the hearing could conclude in, : ! j . . .

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that time even if it were confined to the issues raised by VG '168 ,	l
The respondents to both sets of proceedings oppose the motion that the two proceedings be heard together or one after the other primarily on the ground that it is impossible to have the second proceedings ready for trial to commence on 15 February 1993 and
that the respondents should not lose the opportunity to have the	first proceedings commence on that date. M r Simpson of Counsel
for ADB has foreshadowed an application for summary dismissal of the second proceedings on the ground that the affidavit in support of those proceedings does not disclose facts which, if accepted, could found a winding-up order. Criticism has been made by Mr Rosenzweig, who appears for Mr Bain, an individual respondent to the first proceedings, of the joinder of the directors of ADB as individual respondents to the application to wind-up that company, notwithstanding that other members of the company constituting the majority alleged to have participated in the resolutions at annual general meetings which are complained of have not been joined. Mr Simpson for ADB has joined in that criticism.
~t is also contended that the third named applicant in the second proceedings, the Australian Dancing Society Limited, has no standing to pursue any application for the winding up of ADB. However, it remains open to ADB or Mr Bain, or indeed the
respondents to the second proceedings, to pursue an application to strike out or amend those proceedings even if an order like that sought in the present motions be made to enable the two proceedings to be heard and determined by the same Judge.
It also, of course, remains open to any of the respondents whom I have just identified to seek orders that the second proceedings be discontinued as against them or that other members of ADB having similar interests also be joined as respondents to those proceedings. I have come to the clear view that the interests
be heard and determined at first instance by the same Judge.
of the parties and the efficient use of the Court's resources	combine to make it highly desirable for the two proceedings to
Since all parties have expressed a concern to retain the five days set aside for the hearing of VG 168 of 1991, I consider that
I should order that the proceedings nwnbered VG 3259 of 1992 be
heard and determined by the Judge assigned to commence on 15 February 1993 the hearing of VG 168 of 1991. How that Judge considers the different questions of fact and law should be resolved and the order in which evidence and submissions related to those questions should be received must be a matter for that trial Judge.
In particular, I consider that inmoulding appropriate directions the trial Judge should take account of the interest of the 11th respondent to the first proceedings, the Australian National Amateur Dance Sport Association Inc, for whom Mr Maguire of Counsel has appeared on these motions. That respondent is not a respondent to the later proceedings and would, it appears, have no interest in additional evidence which it may be necessary to receive in order to resolve those proceedings.

I certify that this and the preceding three (3) pages are a true copy of the

Ex Tempore Reasons for Judgment of his

Honour Mr Justice Ryan

Associate: 4 Date:

Counsel for the applicants in

Action No VG 168 of 1991, and

the applicants in Action No

VG 3259 of 1992	Mr R Rosenberg
Solicitor for the applicants in Action No VG 168 of 1991, and the applicants in Action No VG 3259 of 1992	Meerkin and Ape1
Counsel for the first,
second, third, fifth, sixth,
seventh, eighth and tenth
respondents in Action No
VG 168 of 1991, and the
respondents in Action No
VG 3259 of 1992	Mr J C Simpson
Solicitor for the first,
second, third, fifth, sixth,
seventh, eighth and tenth
respondents in Action No
VG 168 of 1991, and the
respondents in Action No
VG 3259 of 1992	T G Hartmann and Associates
Solicitor appearing for the
ninth respondent in Action
No VG 168 of 1991	M r S Rosenzweig of Phillips
Fox
Counsel for the eleventh
respondent in Action
No VG 168 of 1991	Mr G Maguire
Solicitor for the eleventh
respondent in Action
No VG 168 of 1991	Corrs Chambers Westgarth