| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
Corporations List
S CI 2010 6056
| CC CONTAINERS PTY LTD (ACN 128 976 803) & ORS | Plaintiffs |
| v | |
| DESMOND MING LEE & ORS | Defendants |
JUDGE: | FERGUSON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 February 2012 | |
DATE OF RULING: | 26 April 2012 | |
CASE MAY BE CITED AS: | CC Containers Pty Ltd & ors v Lee & ors (No. 2) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 149 | |
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PRACTICE AND PROCEDURE – Application to strike out defence – No positive defence pleaded - Claim of privilege against self incrimination – Claim of penalty privilege - Claim of tort of conspiracy – Alleged breach of fiduciary duty by a director – Allegations of receipt of secret commission and fraud.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr S R Horgan SC with Mr J Brereton | Middletons |
| For the Third and Fourth Defendants | Mr V Ruta | Jack Bock Lawyers |
| For the Sixth Defendant | Mr R N Garratt QC with Mr B Guzzo | Doherty & Colleagues |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 2
The nature of the claims.................................................................................................................... 2
Privilege against self incrimination and penalty privilege........................................................ 3
Should Messrs Chong and Neale be required to plead to the statement of claim?.............. 5
Conclusion........................................................................................................................................... 8
HER HONOUR:
Introduction
The plaintiffs have made a number of very serious allegations of fraud against the defendants connected with a shipping container business. It is also alleged against some of the defendants, including Kevin Chong, Kain Chong and Christopher Neale (respectively, the third, fourth and sixth defendants) that they unlawfully conspired to injure the plaintiffs by unlawful means with the unlawfulness alleged to arise (in part) under provisions in the Crimes Act 1958 (Vic). A further allegation against Mr Neale is that he received secret commissions. The plaintiffs seek orders for compensation under s 1317H of the Corporations Act 2001 (Cth) and exemplary damages (in addition to other forms of relief). Counsel for the plaintiffs informed the Court that the amount claimed (excluding any amount for exemplary damages) is many millions of dollars.
Messrs Chong and Neale have filed defences which are not responsive to the allegations against them that might also form the basis of criminal charges or a civil penalty claim. They say that they are not required to plead to those allegations because they are entitled to claim privilege against self incrimination and penalty privilege (which they assert in their defences).
The plaintiffs have applied to strike out those defences.
The issue is whether the defences should be allowed to stand in circumstances where Messrs Chong and Neale have not put on evidence to establish that there is a real and appreciable risk of prosecution or whether it is sufficient to assert the privilege given the nature of the claims made against them in the statement of claim.
The nature of the claims
The claims arise out of the operation of a shipping container repair and storage business and its purchase by the…
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- AGLC
- CC Containers Pty Ltd v Lee (No 2) [2012] VSC 149
- Case
- [2012] VSC 149
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the defence was adequately pleaded. Specifically, the plaintiff argued that the defence was vague and did not constitute a positive defence, while the defendant countered that his claims of privilege and conspiracy warranted further investigation. The court had to consider whether the defence was sufficient to warrant a trial or if it should be dismissed outright.
The court ruled that the defence was insufficiently detailed and did not present a positive defence. It found that the claims of privilege against self-incrimination and penalty privilege were not adequately substantiated. Furthermore, the allegations of conspiracy, breach of fiduciary duty, and fraud were not sufficiently pleaded to warrant a trial. Consequently, the court granted the plaintiff's application to strike out the defence. The case was set to proceed with the remaining claims against the defendant.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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