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Gooley v Breda Pty Ltd

Gooley v Breda Pty Ltd

Case [2017] NSWSC 817 22 June 2017

Discovery & Disclosure

Jurisdiction

Standing

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Gooley & Ors v Breda Pty Ltd & Ors [2017] NSWSC 817
Hearing dates: 8 February 2017
Date of orders: 22 June 2017
Decision date: 22 June 2017
Jurisdiction: Equity
Before: Slattery J
Decision:
Orders for preliminary discovery made under UCPR, r 5.3 in several of the categories sought. Directions made for the bringing in of short minutes of order and the disposition of any outstanding costs issues.

Catchwords: CIVIL PROCEDURE – application for preliminary discovery under UCPR, r 5.3 – family companies – plaintiffs shareholders in, but not current directors of, several family companies holding substantial real estate – whether plaintiffs entitled to an order for preliminary discovery - whether plaintiffs have already decided to commence proceedings – whether plaintiffs’ case was weak and whether its alleged weakness is a relevant consideration in the exercise of the Court’s discretion to order preliminary discovery – whether sufficient evidence adduced of the plaintiffs’ potential causes of action to ground UCPR, r 5.3 relief.
Legislation Cited: Civil Procedure Act, ss 56, 57 and 58
Corporations Act 2001 (Cth), 247A
Guardianship Act, Part 3A, s 25E
NSW Trustee and Guardian Act 2009
Real Property Act 1900
Uniform Civil Procedure Rules 2005 (NSW), rr 5.2, 5.3
Cases Cited: Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506
Lahoud v Hooper (No 2) [2015] NSWSC 1405
Morton v Nylex [2007] NSWSC 562
Pritchard Lees Pty Ltd v Cathleen Heather [2013] NSWSC 1521
Re Motasea Pty Ltd (2014) 97 ACSR 589
St George Bank Limited v Rabo Australia Ltd (2004) 211 ALR 147
The Age Company Ltd v Liu (2013) 82 NSWLR 268
Yes Family Pty Ltd v Sphere Healthcare Pty Ltd [2016] NSWSC 917
Category: Procedural and other rulings
Parties: First Plaintiff: Brett Raymond Gooley
Second Plaintiff: Finbob Pty Ltd ACN 003 945 480, as trustee for the KB Trust
Third Plaintiff: Janine Ruth Gooley
First Defendant: Breda Pty Ltd ACN 000 399 002
Second Defendant: Decahill Pty Ltd ACN 003 753 713
Third Defendant: Dama Enterprises Pty Ltd ACN 000 604 071
Fourth Defendant: Barton Press Pty Ltd 000 891 976
Fifth Defendant: Goold Enterprises Pty Ltd 01 339 546
Sixth Defendant: Melville William Gooley, by his tutoras Melinda Louise Foley & Aleta Joy Gooley
Seventh Defendant: Melinda Louise Foley
Eighth Defendant: Aleta Joy Gooley, also known as Aleta Joy Kinsella
Representation:
Counsel:

Plaintiffs: J. Knackstredt
Defendants: S.A. Goodman SC

Solicitor:
Plaintiffs: Chris Frawley, M & K Lawyers Group Pty Ltd
Defendants: Jodi Walkom, Thomson Geer

File Number(s): 2016/199780
Publication restriction: No

Judgment

Introduction

Melville William Gooley (the sixth defendant) is a director and shareholder of several family companies with substantial assets. He is now aged in his 90s and is the father of four adult children. Two of his children, Dr Brett Raymond Gooley (the first plaintiff) and Janine Ruth Gooley (the third plaintiff), commenced these proceedings in July 2016 seeking preliminary discovery under Uniform Civil Procedure Rules 2005 (“UCPR

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 Gooley v Breda Pty Ltd

Details

AGLC: Gooley v Breda Pty Ltd [2017] NSWSC 817
Case: [2017] NSWSC 817
Decision Date: 22 June 2017

CaseChat Overview and Summary

The plaintiffs, Mr. and Mrs. Gooley, brought an application for preliminary discovery against Breda Pty Ltd and associated family companies. The plaintiffs, who are shareholders but not current directors of several family companies holding substantial real estate, sought discovery of documents to investigate potential causes of action against the defendants, including allegations of mismanagement and breach of fiduciary duties. The court was required to determine whether the plaintiffs were entitled to an order for preliminary discovery under UCPR, r 5.3, and if so, whether the plaintiffs had already decided to commence proceedings. The court also needed to consider whether the alleged weakness of the plaintiffs' case was relevant in exercising the discretion to order preliminary discovery and whether sufficient evidence was presented of the plaintiffs' potential causes of action to ground such relief.

The court found that the plaintiffs were not precluded from applying for preliminary discovery merely because they had not yet decided to commence proceedings. However, the court emphasised that the decision to grant such an order was discretionary and required the court to consider whether the plaintiff's case was weak and, if so, whether that weakness was relevant. The court determined that the plaintiffs had presented sufficient evidence of potential causes of action, including mismanagement and breach of fiduciary duties, to warrant the exercise of the court's discretion in their favour. The court concluded that the plaintiffs were entitled to an order for preliminary discovery, and it issued such an order.

The final orders of the court included an order for preliminary discovery of documents held by the defendants, relevant to the plaintiffs' potential causes of action, subject to certain conditions and limitations. The court also ordered the defendants to pay the plaintiffs' costs of the application, to be taxed on an indemnity basis if not agreed upon.

Orders