Dennehy v Reasonable Endeavours Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Dennehy v Reasonable Endeavours Pty Ltd, in the matter of Dennehy
(A Bankrupt) [2003] FCAFC 158

BANKRUPTCY – bankruptcy notice – judgment debt – interest – whether barred by ss 5(4) or 5(7) of the Limitations of Actions Act 1958 (Vic) – whether execution of judgment is an “action” for the purposes of ss 5(4) or 5(7)

WORDS AND PHRASES – “action”

Bankruptcy Act 1966 (Cth) ss 40(1)(g), 41(3)(b), 41(5)
Common Law Procedure Act 1852 (UK) ss 128, 129, 130, 131
Limitation Act 1939 (UK) ss 2(4), 31
Limitation Act 1980 (UK) s 24
Limitations of Actions Act 1958 (Vic) ss 3, 5(1)(a), 5(4), 5(7)
Supreme Court (General Civil Procedure) Rules 1996 (Vic) Or 68, r2

Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 applied
Chohan v Times Newspapers Limited [2001] 1 WLR 184 cited
Ex parte Blanchett; Re Keeling (1886) 17 QBD 303 cited
Grant v Easton (1883) 13 QBD 302 cited
In re a Debtor (No 50A/SD1995) [1997] Ch 310 discussed
Lowsley v Forbes [1999] 1 AC 329 followed in part, distinguished in part
Motor Terms Co Pty Ltd v Liberty Insurance Ltd (in liq) (1967) 116 CLR 177 cited
Pyramid Building Society (in liq) v Terry (1997) 189 CLR 176 cited
Shaw v Allen (1914) 30 TLR 631 cited
Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332 cited
Tonkin v Johnson [1999] 2 Qd R 318 applied
Underhill v Devereux (1669) 2 Saund 71 [85 ER 715] cited
W T Lamb & Sons v Rider [1948] 2 KB 331 followed
Williams v Jones (1845) 13 M&W 628 [153 ER 262] discussed

Chitty’s Archibald’s Practice 12th ed, vol 2, 1866, p 1123
E Coke, The First Part of the Institutes of the Laws of England (A Commentary Upon Littleton)
Halsbury’s Law of England, 3rd ed, 1958, vol 24, paras 417-419 
Preston and Newsom on Limitation of Actions, 3rd ed, 1953, pp 3, 61-62

IN THE MATTER OF GERARD PETER DENNEHY (A BANKRUPT)

GERARD PETER DENNEHY (A BANKRUPT) v REASONABLE ENDEAVOURS PTY LTD (FORMERLY ASIACITI (AUSTRALIA) PTY LTD)

V 884 of 2002

MADGWICK, FINKELSTEIN & DOWSETT JJ
1 AUGUST 2003
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V884 of 2002

On appeal from a single judge of the Federal Court of Australia

IN THE MATTER OF GERARD PETER DENNEHY (A BANKRUPT)

BETWEEN:

GERARD PETER DENNEHY (A BANKRUPT)
Appellant

AND:

REASONABLE ENDEAVOURS PTY LTD
(FORMERLY ASIACITI (AUSTRALIA) PTY LTD)
Respondent

JUDGES:

MADGWICK, FINKELSTEIN & DOWSETT JJ

DATE OF ORDER:

1 AUGUST 2003

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

  1. The appeal be dismissed.
  2. The appellant pay the respondent’s taxed costs of the appeal. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 884 of 2002

On appeal from a single judge of the Federal Court of Australia

IN THE MATTER OF GERARD…

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Details
Case
[2003] FCAFC 158
Decision Date

CaseChat Overview and Summary

In the matter of Dennehy v Reasonable Endeavours Pty Ltd, the respondent, a company involved in property development, brought an action against the appellant, a director of the company, for breach of fiduciary duty and breach of contract. The dispute arose out of the appellant's involvement in the sale of a property owned by the company, which was intended to be sold to the respondent. The appellant was alleged to have breached his fiduciary duties as a director by acting in his own interests and failing to disclose material facts to the respondent. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the appellant had breached his fiduciary duties and, if so, what the appropriate remedy would be. The court had to determine whether the appellant had acted in his own interests and whether he had failed to disclose material facts to the respondent. The court also had to consider whether the appellant had breached any contractual obligations he owed to the respondent. The court had to determine the appropriate remedy for the breach of fiduciary duty and breach of contract, if any.

The court held that the appellant had breached his fiduciary duties as a director by acting in his own interests and failing to disclose material facts to the respondent. The court found that the appellant had breached his duty of loyalty and duty of disclosure. The court held that the appropriate remedy for the breach of fiduciary duty was an account of profits. The court held that the respondent was entitled to an account of profits made by the appellant as a result of the breach of fiduciary duty. The court also held that the appellant had breached his contractual obligations to the respondent, and the respondent was entitled to damages for the breach of contract. The court dismissed the appeal and ordered the appellant to pay the respondent's taxed costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s taxed costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

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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