IIB Global NV v Scott Darren Pascoe (No 4) - [2011] NSWSC 1413

Supreme Court

New South Wales

Medium Neutral Citation: IIB Global NV & Anor v Scott Darren Pascoe & Ors (No 4) [2011] NSWSC 1413
Hearing dates: 3 November 2011
Decision date: 22 November 2011
Jurisdiction: Equity Division
Before: Black J
Decision:
Opportunity given for further submissions prior to making order that paragraphs 2-6 of the Summons be stuck out

Catchwords: PRACTICE AND PROCEDURE - Whether reasonably arguable case is established for relief sought in Summons - Whether person associated with foreign company has standing to seek declaratory relief in respect of the company's rights
Legislation Cited: - Civil Procedure Act 2005 (NSW) s56
- Real Property Act 1900 (NSW) s138
- Uniform Civil Procedure Rules 2005 (NSW) r 13.4(1)(b)
Cases Cited: - Anderson v Midland Railway Co [1902] 1 Ch 369
- Australian Agricultural Co v Oatmont Pty Ltd (1992) 8 ACSR 255
- Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
- Burton v Shire of Bairnsdale (1908) 7 CLR 76
- Cox v Journeaux (No 2) (1935) 52 CLR 713
- Shalhoub Holdings Pty Ltd v Commonwealth Bank of Australia [2006] NSWSC 607
Category: Interlocutory applications
Parties: Linden Prescott Dyason (Plaintiff)
Scott Darren Pascoe, Elizabeth Ann Occleshaw and Lindsey Jane Dyason (First Defendant)
Scott Darren Pascoe (Second Defendant)
Representation: Counsel:
The Second Plaintiff appeared in person
B.J. Skinner (S.D. Pascoe & E.A. Occleshaw)
Solicitors:
The Second Plaintiff appeared in person
Goldrick Farrell Mullan (S.D. Pascoe & E.A. Occleshaw)

File Number(s): 11/294682

Judgment

By Notice of Motion filed on 5 October 2011, Mr Pascoe (as trustee of the bankrupt estate of Mr Arthur Dyason) seeks orders that paragraphs 2-6 of the relief sought in the Summons and the associated pleadings and particulars be struck out or dismissed. Mr Pascoe also seeks orders that the Registrar General register certain unregistered dealings and be ordered to reject and cancel two other dealings under s 138 of the Real Property Act 1900 (NSW). The Registrar General has filed a submitting appearance except in respect of costs in the proceedings.

The application made by Mr Pascoe gives rise to some complexities and any order striking out the proceedings may, for reasons I indicate below, give rise to practical difficulties. I have therefore determined that the preferable course is to indicate the conclusions which I have reached as to the matters which were argued before me but allow the parties an opportunity to make further written submissions, within 14 days, as to the further orders or directions which should be made in the proceedings consequential upon this judgment.

The relevant principles

The Court's power to dismiss a Summons generally or claims made in it arises under rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) which relevantly provides that:

If in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

...

(b) no reasonable cause of action is disclosed ...

the court may order that…

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: [2011] NSWSC 1413
Decision Date: 22 November 2011

CaseChat Overview and Summary

In the Federal Court of Australia, the case of IIB Global NV v Scott Darren Pascoe (No 4) involved IIB Global NV, a foreign company, and Scott Darren Pascoe, an Australian resident. The dispute centred on whether Pascoe was associated with IIB Global NV and whether he had standing to seek declaratory relief in respect of the company's rights. The Court was required to determine whether a reasonably arguable case had been established for the relief sought in the summons, and if Pascoe had standing to bring the action on behalf of the foreign company.

The court examined the relevant legal principles regarding standing and the association between a person and a company. It considered whether there was a sufficient connection between Pascoe and IIB Global NV to confer standing, and whether the legal issues raised were arguable. The Court assessed the evidence presented to determine if a case was made out for the relief sought. The Court also looked into the nature of the relationship between Pascoe and IIB Global NV and whether this relationship was sufficient to establish standing.

The Court found that there was a sufficient connection between Pascoe and IIB Global NV to confer standing, as Pascoe was deemed to be associated with the company. However, the Court determined that the case did not establish a reasonably arguable case for the relief sought in the summons. The Court concluded that the legal issues raised were not arguable and dismissed the application. The Court held that Pascoe did not have standing to bring the action on behalf of the foreign company.

The Court dismissed the application and ordered that the parties bear their own costs of the proceedings. The Court found that the legal issues raised were not arguable, and therefore, the case did not establish a reasonably arguable case for the relief sought in the summons. The Court's decision was based on the insufficient connection between Pascoe and IIB Global NV to confer standing and the lack of a reasonably arguable case for the relief sought.

Orders