Field v Jenolan Caves Resort Pty Ltd - [2009] NSWSC 491

CITATION: Field v Jenolan Caves Resort Pty Ltd [2009] NSWSC 491
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 26/05/09

JUDGMENT DATE :
5 June 2009

JURISDICTION: (1) Common Law Division
Administrative Law List
(2) Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Interlocutory applications in both proceedings dismissed. Question of costs reserved.

CATCHWORDS: PROCEDURE - application for summary dismissal - claim by director of company where alleged wrong done to company - proper plaintiff rule - company in liquidation - director does not have standing to seek leave to sue for company - whether conceivable claim for breach of statutory duty - any such claim also belongs to company alone - CORPORATIONS - proper plaintiff rule - putative plaintiff company in liquidation joined as defendant - application for leave to proceed against company in liquidation - no cause of action - leave refused

LEGISLATION CITED: Corporations Act 2001 (Cth), Part 5.3A, ss 236(1)(a)(ii), 237, 500(2)
National Parks and Wildlife Act 1974, s 58V, 58ZE
Real Property Act 1900
Uniform Civil Procedure Rules 2005, rules 13.4, 14.28

CATEGORY: Principal judgment

CASES CITED: Carpenter v Pioneer Park Pty Ltd [2008] NSWSC 551; (2008) 71 NSWLR 577
Chahwan v Euphoric Pty Ltd [2008] NSWCA 52; (2008) 245 ALR 780
Foss v Harbottle (1843) 2 Hare 461; 67 ER 189
Spokes v Grosvenor Hotel Co [1897] 2 QB 124
St George Bank Ltd v Field [2007] NSWSC 902
Street v Luna Park Sydney Pty Ltd [2006] NSWSC 230

PARTIES: (1) Archer Philip Field - Plaintiff
Jenolan Caves Resort Pty Limited (in liq) - First Defendant
St George Bank Limited - Second Defendant
State of New South Wales - Third Defendant
(2) Archer Philip Field - Plaintiff
Jenolan Caves Resort Pty Limited (in liq) - Defendant

FILE NUMBER(S): SC (1) 30126/08; (2) 2099/09)

COUNSEL: (1) Mr R K Newton - Plaintiff
Mr P J Dowdy - Second Defendant
Ms J Rogers, Solicitor - Third Defendant
(2) Mr R K Newton - Plaintiff
Mr P J Dowdy - St George Bank Limited

SOLICITORS: (1)The People's Solicitors Pty Ltd - Plaintiff
Henry Davis York - Second Defendant
I V Knight, Crown Solicitor - Third Defendant
(2) The People's Solicitors Pty Ltd - Plaintiff
Henry Davis York - St George Bank Limited

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

BARRETT J

FRIDAY 5 JUNE 2009

30126/08 ARCHER PHILIP FIELD v JENOLAN CAVES RESORT PTY LTD & 2 ORS
2099/09 ARCHER PHILIP FIELD v JENOLAN CAVES RESORT
PTY LTD

JUDGMENT

1 By summons filed on 23 October 2008, Mr Archer Field commenced proceedings in the Administrative Law List of the Common Law Division against three defendants, being Jenolan Caves Resort Pty Ltd (“JCR”), St George Bank Ltd (“St George”) and the Crown in right of New South Wales. A statement of claim was filed on 23 December 2008.

2 JCR became subject to creditors voluntary winding up in…

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: [2009] NSWSC 491
Decision Date: 5 June 2009

CaseChat Overview and Summary

Field v Jenolan Caves Resort Pty Ltd is a case involving a claim by a director of a company, who alleges that a wrong has been done to the company. The defendant, Jenolan Caves Resort Pty Ltd, is a company that has been placed in liquidation. The primary legal issue before the court was whether the director, as the applicant, had standing to seek leave to sue on behalf of the company, which is in liquidation. The court had to determine if there was a conceivable claim for breach of a statutory duty and whether such a claim belonged solely to the company.

The court examined the principle of the proper plaintiff rule, which generally requires that the party with the legal right to bring an action is the one who has suffered the injury. In this case, the company was the entity that suffered the injury, and it was in liquidation. The court noted that the director did not have standing to seek leave to sue on behalf of the company. Any conceivable claim for breach of statutory duty also belonged to the company alone, and thus, the director was not the proper plaintiff. The court also considered whether there was a cause of action that could be pursued by the director individually, but found that no such cause of action existed.

Consequently, the court refused the application for leave to proceed against the company in liquidation. The court held that there was no conceivable claim for breach of statutory duty, and any such claim belonged solely to the company. The director, therefore, did not have standing to bring the action on behalf of the company, which was in liquidation. As a result, the application for summary dismissal was upheld, and the court dismissed the director's claim.

Orders