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Clutha v Millar

Clutha v Millar

Case [2002] NSWSC 362 6 May 2002

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CITATION: Clutha v Millar [2002] NSWSC 362

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4834/00

HEARING DATE(S): 8 & 15 April 2002

JUDGMENT DATE: 6 May 2002

PARTIES :

Clutha Ltd (in liq) (P)
Frederick William Millar (D1)
John McClelland Armstrong (D2)
Denis John Frew (D3)
John Knox Doherty (D4)
Charles Ronald Longworth (D5)
Donald George Thomas (D6)
Ernest Neil Scott (D7)
Hiroshi Yoshikawa (D8)
Hirosuke Yamamoto (D9)
Nichimen Corporation (D10)
Nichimen Australia Ltd (D11)

JUDGMENT OF: Austin J

COUNSEL : Mr J C Kelly SC with G Seib (P)
Mr G Lucarelli (D1 to D7)
Mr J Marshall (D10 & D11)

SOLICITORS: Piper Alderman (P)
Minter Ellison (D1 to D7)
Clayton Utz (D10 & D11)

CATCHWORDS: PRACTICE AND PROCEDURE - pleading - limitation of action - whether pleading in negligence and breach of duty asserts multiple breaches, some within and some outside limitation period, or a single breach outside the limitation period

LEGISLATION CITED: Limitations Act 1969 (NSW) ss 14, 63

CASES CITED: Air Services Australia v Zarb (Court of Appeal of New South Wales, 26 August 1998, unreported)
Cassis v Kalfus [2001] NSWCA 460
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hawkins v Clayton (1987) 164 CLR 539
Hillebrand v Council of the City of Penrith [2000] NSWSC 1058
Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 124
Scarcella v Lettice [2000] NSWCA 289
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514

DECISION: Proceeding to be dismissed as against first to seventh defendants, subject to determination of application to amend

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

MONDAY 6 MAY 2002

4834/00 CLUTHA LTD (IN LIQ) V FREDERICK WILLIAM MILLAR & ORS

JUDGMENT

1 HIS HONOUR: This judgment relates to a notice of motion in proceeding No 4834 of 2000, by which the first to seventh defendants ("the applicants") seek an order that the proceeding be dismissed against them. According to their contention, the pleaded cause of action is statute barred.

2 There are two proceedings in this Court relating to the insolvency of Clutha Ltd (in liquidation) ("Clutha") and the alleged liability of its directors, namely No 4834 of 2000 ("the 2000 Proceeding") and No 1428 of 2001 ("the 2001 Proceeding").

3 Clutha was a substantial mining company, which traded up to 14 February 1995 under the management of its board of directors. According to the statements of claim in both proceedings, on 28 November 1994 Clutha issued a substantial quantity of shares to Nichimen Corporation, for which Nichimen Corporation paid $7.2 million. As part of the transaction Mr Yoshikawa became a director of Clutha on 30 November 1994, and Mr Yamamoto was appointed as alternate director for Mr Yoshikawa. Mr Yoshikawa is alleged to be a director, agent and employee of Nichimen Corporation, and Mr Yamamoto is alleged to be a director, agent and employee of Nichimen Australia (a wholly-owned subsidiary of Nichimen Corporation).

4 On 14 February 1995 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.

Continue reading Clutha v Millar

Details

AGLC: Clutha v Millar [2002] NSWSC 362
Case: [2002] NSWSC 362
Decision Date: 6 May 2002

CaseChat Overview and Summary

The case involved a claim by Clutha, the plaintiff, against Millar, the defendant, in relation to an incident that occurred at a bar owned by Millar. The dispute centred around whether the plaintiff's claim for negligence and breach of duty was time-barred. The matter was heard by the Supreme Court of Victoria. The plaintiff alleged that the defendant had failed to properly secure a balcony at the bar, leading to a fatality. The plaintiff argued that the incident constituted a continuing breach of duty, while the defendant contended that the claim was time-barred as the incident occurred outside the limitation period.

The court was required to determine whether the plaintiff's pleadings asserted a single breach of duty that occurred outside the limitation period, or multiple breaches, some of which occurred within and some outside the limitation period. The court also had to consider whether the pleadings were sufficient to establish the existence of a continuing breach of duty. The defendant argued that the plaintiff's claim was time-barred, as the incident occurred more than three years prior to the commencement of proceedings. The plaintiff, on the other hand, contended that the defendant's breach of duty was ongoing, and that the limitation period had not expired.

The court held that the plaintiff's pleadings did not sufficiently assert a continuing breach of duty, and that the claim was therefore time-barred. The court found that the plaintiff had not pleaded a sufficient factual basis for a finding that the defendant's breach of duty was continuing. The court also held that the limitation period had expired, and that the plaintiff's claim was therefore statute-barred. The court noted that the plaintiff's pleadings were deficient in that they did not allege facts sufficient to establish a continuing breach of duty, and that the plaintiff had failed to plead a cause of action that was not time-barred. The court dismissed the plaintiff's claim in its entirety.

The court made no orders for costs.

Orders