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Ballard v Multiplex Ltd

Ballard v Multiplex Ltd

Case [2008] NSWSC 1019 3 October 2008

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CITATION: David Ballard v Multiplex Limited [2008] NSWSC 1019

HEARING DATE(S): 11 August 2008

JUDGMENT DATE :
3 October 2008

JUDGMENT OF: McDougall J at 1

DECISION: See para [99] of the judgment.

CATCHWORDS: PRACTICE – Application further to amend statement of contentions – adequacy of statement of contentions – whether statement notifies opposing party of the case to be made against it. - DAMAGES – “Prudential” principle – shareholders cannot recover damages reflective of a loss suffered by a company – shareholders may recover damages for a loss which the company would not have sustained itself – shareholders in their capacity as guarantor of a company’s obligations may recover damages for loss. - DAMAGES – Conspiracy – actual pecuniary loss must be established to recover damages – damages for injury to reputation can not be awarded in an action for conspiracy – plaintiff may recover damages for physical injury where conspiracy is proved.

LEGISLATION CITED: Civil Procedure Act 2005
Industrial Relations Act 1988
Industrial Relations Act 1991
Industrial Relations Act 1996
Limitation Act 1969
Trade Practices Act 1974
Workplace Relations Act 1996

CATEGORY: Principal judgment

CASES CITED: Bell-Booth Group Ltd v Attorney General [1989] 3 NZLR 148
Brambles Australia Ltd v Tatale Pty Ltd [2006] NSWSC 204
Chen v Karandonis [2002] NSWCA 412
Crofter Handwoven Harris Tweed Co Ltd v Veitch [1942] AC 435
Foss v Harbottle (1843) 2 Hare 461; (1843) 67 ER 189
Gould v Vaggelas (1985) 157 CLR 215
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No.6) (2007) 63 ACSR 1
Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1
Lonrho v Fayed [1992] 1 AC 448
Lonrho PLC v Fayed (No.5) [1993] 1 WLR 1489
McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409
Prudential Assurance Co Ltd v Newman Industries Ltd (No.2) [1982] Ch 204
Quinn v Leathem [1901] AC 495
Thomas v D’Arcy (2005) 52 ACSR 609
Arthur Young v Teico International (1995) 182 LSJS 367

PARTIES: David Ballard (Plaintiff)
Multiplex Limited (ACN 008 687 063) (First Defendant)
Multiplex Corporate Agency Pty Ltd (ACN 003 070 120) (Second Defendant)
Construction Forestry Mining and Energy Union (Third Defendant)
Construction Forestry Mining and Energy Union (New South Wales Branch) (Fourth Defendant)
Andrew Ferguson (Fifth Defendant)

FILE NUMBER(S): SC 50207/07

COUNSEL: I M Neil SC / G A Sirtes (Plaintiff)
B W Walker SC / S A Kerr (First and Second Defendants)
M Condon (Third, Fourth and Fifth Defendants)

SOLICITORS: Carlisle Attorneys (Plaintiff)
Clayton Utz (First and Second Defendants)
Taylor & Scott (Third, Fourth, Fifth and Sixth Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McDOUGALL J

3 October 2008

50207/07 DAVID BALLARD v MULTIPLEX LTD & ORS

JUDGMENT

1 HIS HONOUR: The plaintiff (Mr Ballard) worked in the construction industry as a demolition contractor. Through a company, Stoneglow Pty Limited, he enjoyed contracts with one or other of the first and second defendants (the Multiplex defendants). Mr Ballard claims that he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ballard v Multiplex Ltd

Details

AGLC: Ballard v Multiplex Ltd [2008] NSWSC 1019
Case: [2008] NSWSC 1019
Decision Date: 3 October 2008

CaseChat Overview and Summary

The case of Ballard v Multiplex Ltd was heard in the Supreme Court of New South Wales. The plaintiff, Ballard, sought to amend his statement of contentions to include claims against Multiplex Ltd for damages relating to a conspiracy. The dispute centred around whether Ballard's proposed amendments adequately notified Multiplex of the case it would need to defend, and whether Ballard could recover damages for losses the company would not have suffered itself, such as injury to reputation or physical harm.

The legal issues the court needed to address included the adequacy of the proposed amendments to the statement of contentions, and the scope of damages available to shareholders in relation to losses suffered by the company. Specifically, the court had to determine if the shareholders could recover damages for losses that the company itself would not have been entitled to claim, and if the shareholders, in their capacity as guarantors of the company's obligations, could recover damages for the company's loss. Additionally, the court had to consider whether damages for injury to reputation could be awarded in an action for conspiracy, and if physical injury could be compensated where a conspiracy was proven.

The court found that the proposed amendments to the statement of contentions adequately notified Multiplex of the claims being made against it. Regarding the damages, the court held that shareholders cannot recover damages reflective of a loss suffered by the company, but may recover damages for a loss which the company would not have sustained itself. Shareholders in their capacity as guarantors of a company's obligations could also recover damages for loss. The court further clarified that while actual pecuniary loss must be established to recover damages in a conspiracy claim, damages for injury to reputation cannot be awarded. However, the court noted that a plaintiff may recover damages for physical injury where a conspiracy is proved.

The court ordered that the plaintiff's application to amend the statement of contentions be granted, and that the case proceed on the amended basis. The court also confirmed that the plaintiff could pursue damages for certain losses not suffered by the company, and for physical injury resulting from the alleged conspiracy.

Orders