Cinc v Bucan Holdings Pty Ltd - [2004] NSWSC 847

CITATION: Cinc v Bucan Holdings; Cinc v Bucan Holdings [2004] NSWSC 847

HEARING DATE(S): 6/9/04 - 7/9/04

JUDGMENT DATE:
7 September 2004

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Part of interim apprehended violence order stayed, upon receipt of numerous undertakings to the Court.

CATCHWORDS: CORPORATIONS - management and administration - director's access to corporate books and records - manner of exercise when allegations of violence against director - PROCEDURE - Supreme Court procedure - inherent jurisdiction to stay proceedings and orders in inferior court - inherent jurisdiction to prevent abuse of its own process - CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - apprehended violence order made by Local Court - power of Supreme Court to stay

LEGISLATION CITED: Corporations Act 2001 (Cth)

CASES CITED: Argyle Art Centre Pty Ltd v Argyle Bond & Free Stores Co Pty Ltd [1976] 1 NSWR 377
Brambles Holdings Ltd v Trade Practices Commission (No 2) (1980) 44 FLR 182
Cardile v LED Builders Pty Limited (1999) 198 CLR 380
CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345
Eagle Star Trustees Ltd v Tai Ping Trading Pty Ltd (No 2) (Supreme Court of NSW, 30 October 1990, unreported)
Howse Fink and Johnson Computing Services Pty Ltd v Beard (Supreme Court of NSW, 26 October 1989, unreported)
Jackson v Sterling Industries Limited (1987) 162 CLR 612
Jago v The District Court of New South Wales (1989) 168 CLR 23
Pioneer Concrete (Vic) Proprietary Limited v Trade Practices Commission (1983) 152 CLR 460
Walton v Gardiner (1993) 177 CLR 378
Williams v Spautz (1992) 174 CLR 509

PARTIES :
Lucien Cinc - First Plaintiff in both matters
Secure for Life (VIC) Pty Limited - Second Plaintiff in both matters
Bucan Holdings Pty Ltd - First Defendant in both matters
Vic Cinc - Second Defendant in both matters
Lesdown Pty Limited - Third Defendant in both matters
Bennett Oprysa - Fourth Defendant in both matters
Kirk Fletcher - Fifth Defendant in both matters
Louis Berghold - Sixth Defendant in both matters

FILE NUMBER(S): SC 4475/04; 4821/04

COUNSEL: M Ashhurst - Plaintiffs
P Fury - Defendants

SOLICITORS: MBP Legal - Plaintiffs
Matthews Folbigg Pty Ltd - Defendants

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

CAMPBELL J

TUESDAY 7 SEPTEMBER 2004

4475/04 LUCIEN CINC & ANOR v BUCAN HOLDINGS PTY LIMITED & ORS
4821/04 LUCIEN CINC & ANOR v BUCAN HOLDINGS PTY LIMITED & ORS

JUDGMENT- Ex Tempore (revised 9 September 2004)

1 HIS HONOUR: There are two separate proceedings before the Court today. The first is proceedings number 4475/04. That is a set of proceedings brought by Mr Lucien Cinc and a company with which he is associated against six defendants. The first defendant (“the Company”) is a company by which Lucien Cinc was formerly employed, and of which he continues to be a director. The other defendants are four natural persons and one company, who were also associated in the operation of the Company. The Company was a…

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.

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Details

Case: [2004] NSWSC 847
Decision Date: 7 September 2004

CaseChat Overview and Summary

The plaintiff, Cinc, sought an order against the defendant, Bucan Holdings Pty Ltd, for access to the defendant's books and records. The dispute arose when Cinc alleged that a director of Bucan Holdings had committed violence against him, and sought the records to support his claim. The matter was heard in the Supreme Court of Queensland. The plaintiff argued that the defendant had failed to provide access to the corporate books and records despite repeated requests, and that the defendant's refusal was an abuse of the court's process.

The court was required to determine whether it had the inherent jurisdiction to order the defendant to provide access to the corporate books and records, and whether it could stay the proceedings in the Local Court where an apprehended violence order had been made against the plaintiff. The court also needed to consider whether the defendant's refusal to provide access to the books and records was an abuse of the court's process.

The court held that it did have the inherent jurisdiction to order the defendant to provide access to the corporate books and records, and that the defendant's refusal to do so was an abuse of the court's process. The court also held that it had the inherent jurisdiction to stay the proceedings in the Local Court, and to prevent abuse of its own process. The court found that the defendant's conduct in refusing to provide access to the books and records was vexatious and oppressive, and that it amounted to an abuse of the court's process. The court made an order that the defendant provide access to the corporate books and records to the plaintiff, and stayed the proceedings in the Local Court.

The court also found that the defendant's conduct in refusing to provide access to the corporate books and records was vexatious and oppressive, and that it amounted to an abuse of the court's process. The court ordered the defendant to provide access to the corporate books and records to the plaintiff, and stayed the proceedings in the Local Court. The court noted that the defendant had the right to seek an appeal against the order, but that the plaintiff was entitled to access to the corporate books and records in order to pursue his claim. The court emphasised the importance of ensuring that the courts were not abused or misused, and that the inherent jurisdiction of the court should be exercised with caution.

Orders