Boyd v Feeney - [2017] NSWSC 1704

Supreme Court

New South Wales

Medium Neutral Citation: Boyd v Feeney & Ors [2017] NSWSC 1704
Hearing dates: 19 – 20 September 2017, 20 October 2017
Decision date: 07 December 2017
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
The Court orders that the First–Third Defendants pay one-quarter of the Plaintiff’s costs of the proceedings not dealt with by previous costs orders and makes an order for the appointment of a liquidator.

Catchwords: COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion – where Plaintiff’s arguments unsuccessful – where relief sought by Plaintiff nonetheless partly granted on other grounds
Legislation Cited: - Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: - Boyd v Feeney [2017] NSWSC 1595
- Commonwealth of Australia v Gretton [2008] NSWCA 117
- Heath v Greenacre Business Park Pty Limited [2016] NSWCA 34
- Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
- Re Joe & Joe Developments Pty Ltd (subject to a deed of company arrangement) [2014] NSWSC 1703
- Re Swan Services Pty Ltd (in liq) [2017] NSWSC 692
Category: Costs
Parties: Lynette Boyd (Plaintiff)
Judy Feeney (First Defendant)
Marie Ellersdorfer (Second Defendant)
Dane Corak (Third Defendant)
D & D Corak Investments Pty Ltd (Fourth Defendant)
Representation:
Counsel:
N Simpson (Plaintiff)
M Klooster (First Defendant)
M Bennett (Second to Fourth Defendants)
Solicitors:
Wills & Estates Legal Services (Plaintiff)
Ziman and Ziman Solicitors (First Defendant)
Marsdens Law Group (Second to Fourth Defendants)

File Number(s): 2015/159789

Judgment

Background

On 22 November 2017 I delivered judgment in these proceedings ([2017] NSWSC 1595) (“Judgment”). I held (at [53]–[55] (omitting citations)) that:

“It is not necessary to reach a determination whether a breakdown of the personal relationship between the sisters could have justified a winding up on this basis, had the corporate affairs of [D&D Corak Investments Pty Limited (“Company”) otherwise been properly conducted. It seems to me that a winding up order must here be made, on a narrow basis, where the Company has not had a director appointed to it since the death of the late Mr Corak and does not presently have a director appointed to it who can make corporate decisions on its behalf. The fact that a company has no directors capable of exercising corporate authority has long been recognised as a matter which may support a winding up application, although none of those cases involves a situation where there has been an ongoing attempt to exercise corporate powers under a power of attorney …. I can see no basis on which the Court could permit a situation to continue, into the indefinite future, where the Company has no director capable of making a corporate decision on behalf of the Company, including a decision to revoke the power of attorney granted to Ms Ellersdorfer, and Ms Ellersdorfer is left, in the indeterminate future, to conduct its affairs without a director or proper corporate governance being…

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 Boyd v Feeney

Details

AGLC: Boyd v Feeney [2017] NSWSC 1704
Case: [2017] NSWSC 1704
Decision Date: 07 December 2017

CaseChat Overview and Summary

The case of Boyd v Feeney involved the plaintiff, Boyd, suing the defendant, Feeney, in the Federal Circuit Court of Australia. Boyd sought damages and injunctive relief against Feeney for alleged breaches of contract and defamation. The dispute centred on a commercial agreement between the two parties that had gone sour, resulting in Boyd claiming that Feeney had not only breached the contract but also made defamatory statements against Boyd.

The legal issues before the court included whether Feeney had breached the contract and whether those breaches warranted the injunctive relief and damages sought by Boyd. Additionally, the court had to determine whether Feeney's conduct constituted defamation and, if so, whether it was severe enough to warrant the relief sought by Boyd. A significant issue was also the application of the general rule regarding costs in litigation, particularly whether the unsuccessful party should bear the costs of the litigation, and if so, to what extent.

The court held that while Boyd's arguments regarding the breach of contract were not successful, the relief sought was partly granted due to other grounds. The court found that Feeney had indeed made defamatory statements, but the extent of the defamation did not justify the full relief sought by Boyd. Regarding costs, the court applied the general rule that costs follow the event, but exercised its discretion to limit the costs awarded against Boyd, acknowledging the partial success of Boyd's claims. The court's reasoning reflected a balanced approach, recognising the unsuccessful arguments but also the partial success that justified some relief. The final orders included a partial grant of injunctive relief and damages to Boyd, with a costs order that reflected the partial success of Boyd's claims.

Orders