Boniel v Camilleri

[1999] NSWSC 174

CITATION:	Boniel v. Camilleri [1999] NSWSC 174
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	4985/98
HEARING DATE(S):	9 March 1999
JUDGMENT DATE:	9 March 1999
PARTIES :	Lorna Boniel (P) Charles Camilleri (D1) Paul Camilleri (D2) John Camilleri (D3) Camilleri Stockfeeds Pty. Limited ACN 000 499 918 (D4)
JUDGMENT OF:	Master McLaughlin

COUNSEL :
SOLICITORS:	McCabes (P) Church & Grace (D)
CATCHWORDS:
ACTS CITED:	Corporations Law
DECISION:

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SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 9 March 1999.

4985/98 LORNA BONIEL -v-
CHARLES CAMILLERI & 3 ORS

1 MASTER: By notice of motion filed on 26 February 1999, the applicants (being Charles, Paul and Joseph Camilleri, the first, second and third defendants) seek substantively an order that the proceedings continue on pleadings. The plaintiff, Lorna Boniel, opposes that relief.
2 The substantive proceedings were instituted by the plaintiff on 14 December 1998 by the filing a summons. That summons sought substantive relief of the nature appropriate to what is sometimes described as an oppression suit. The relief sought in the summons includes:
1) A declaration that the affairs of the fourth defendant, Camilleri Stock Foods Pty Limited, are being conducted in a manner that is oppressive and unfairly prejudicial to and unfairly discriminatory against the plaintiff.

2) An order that the first, second and third defendants purchase the shares in the fourth defendant held by the plaintiff
3) A reference to the Master for inquiry and report upon the value of the shares in the fourth defendant at a certain specified date.

3 The plaintiff also sought alternative relief, including an order that the fourth defendant be wound up.
4 The plaintiff in opposing the present application points to the fact that the proceedings were required by Part 80(A) rule 3 of the Supreme Court Rules to be instituted by summons.
5 The fact that proceedings are required by the Rules to be instituted by summons is not, of course, determinative of whether the Court should exercise the discretion given to it by Part 5 rule 11 of the Rules to order that the proceedings continue on pleadings.
6 The purpose of pleadings is to delimit the issues between the parties so that a defendant will know with precision and specificity the nature of the cause of action being asserted against it by the plaintiff.
7 In the instant case I have been taken on behalf of the plaintiff to two very extensive affidavits together with a large binder of exhibits to one of those affidavits. The exhibits alone comprise in excess of two hundred thirty pages. One of the affidavits consists of fifty pages and the other of twenty-nine pages.
8 It will be appreciated that the summons merely seeks relief. The basis upon which that relief is sought by the plaintiff must be gleaned from the evidence. My reading of the evidence to which the plaintiff has taken me in the present application clearly indicates that there is a great deal of material concerning various events (including alleged meetings of the fourth defendant and conversations between the parties) upon which the plaintiff wishes to rely upon in support of her claim for substantive relief. Nevertheless that material does not of itself indicate with either precision or specificity the cause of action upon which the plaintiff seeks to rely.
9 The Corporations Law itself makes provision in two entirely separate sections for relief of the nature sought in the present proceedings, which are of the kind to which I have already referred as being commonly described as an oppression suit.
10 Section 246(AA) of the Corporations Law provides, in subsection (1) thereof for an application to be made to the Court by a member of a company who believes that the affairs of the company are being conducted in a manner that is oppressive or unfairly prejudicial to or unfairly discriminatory against a member or members or in a manner that is contrary to the interests of the members as a whole. It will be appreciated that prayer 1 of the summons reflects the provisions of that subsection.
11 Further, section 461 of the Corporations Law provides, in subsection (1), various grounds upon which the Court may order the winding up of the company. Those ground include the grounds set forth in paragraphs (f), (g) and (k) of that subsection. Some or all of those three grounds may well be able to be relied upon by the plaintiff in asserting her claim.
12 It seems to me, however, that the very considerable bulk of the evidence of itself is a sufficient indication that it is appropriate in the circumstances of this case that the matter should proceed on pleadings, so that the defendant will know clearly the cause of action upon which the plaintiff seeks to rely, and that the plaintiff in due course will be aware of the nature of the defences which the defendants wish to raise in opposing the claim of the plaintiff.
13 For those reasons therefore I propose to make an order that the proceedings continue upon pleadings and to make consequential orders.
14 I make the following orders:
1) I make orders as sought in paragraphs 2 and 3 in the notice of motion filed by the first, second and third defendants on 26 February 1999, substituting in paragraph 3 the number “21” for the number “14”.

2) I order that the costs of the aforesaid notice of motion be the costs of the aforesaid defendants in the proceedings.
The exhibits may be returned.

I certify that this and the preceding
pages are a true copy of the reasons for
judgment of Master McLaughlin

Dated: 9 March 1999
Associate

Mark A. Provera

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