Isak Constructions v Faress - [2005] NSWSC 679

CITATION:
Isak Constructions v Faress [2005] NSWSC 679

HEARING DATE(S): 4 July 2005

JUDGMENT DATE :

4 July 2005

JURISDICTION:
Equity

JUDGMENT OF:
Campbell J

DECISION:
Court has jurisdiction. Notice of motion able to be filed and determined.

CATCHWORDS:
CORPORATIONS - management and administration - leave granted in previous proceedings for person to intervene in litigation to enforce company's rights - whether court has jurisdiction to grant leave to that person to cease to exercise the leave previously granted - PROCEDURE - Supreme Court proceedure - whether notice of motion can be filed and determined in proceedings which have been dismissed

LEGISLATION CITED:
Corporations Act 2001 (Cth)
Supreme Court Rules 1970

CASES CITED:
Hawksford v Hawksford [2005] NSWSC 463
Isak Constructions v Faress [2003] NSWSC 784
Re Jay-O-Bees [2004] NSWSC 818; (2004) 50 ACSR 565

PARTIES:
Isak Constructions (Aust) Pty Ltd - First Plaintiff
Mikko Isakka - Second Plaintiff
Adib Faress - First Defendant/Applicant
Emerald Developments (Aust) Pty Ltd - Second Defendant
Faress Fares - Third Defendant
Wen Kai Tan - Fourth Defendant

FILE NUMBER(S):
SC 1440/03

COUNSEL:
D W Rayment - First Defendant/Applicant

SOLICITORS:
Clark McNamara Lawyers - First Defendant/Applicant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

MONDAY 4 JULY 2005

1440/03 ISAK CONSTRUCTIONS & ANOR v FARESS & ORS

JUDGMENT – Ex Tempore

1 HIS HONOUR: The proceedings in which this application is brought are an internal dispute about the ownership of shares in, and the management of, the plaintiff company (“the Company”). People who were once the shareholders in the Company have fallen out, and there is some uncertainty as a result of various steps taken by some of them, about exactly who the present shareholders and directors of the Company are. The present proceedings were ones which were brought to seek the Court’s resolution of that practical problem.

2 On 27 August 2003 Barrett J heard and determined a notice of motion in these proceedings. His Honour granted to Mr Faress, who at one time had clearly been a director of the Company but whose status at the time of the application to Barrett J was a matter in dispute in the proceedings, leave under section 237 Corporations Act 2001 (Cth) to intervene in certain District Court proceedings on behalf of the Company. Those District Court proceedings, number 8748 of 2002, were ones which had been brought against the Company by someone who had done work for it, seeking payment. Mr Faress had handed the defence of those proceedings to a co-director, but had fallen out with the co-director, and found that a default judgment had been entered in the District Court proceedings. As well, Mr Faress had a personal liability under a guarantee for performance of a building contract which the Company then had on foot. Whether the Company owed the debt claimed in the District Court proceedings may have affected Mr Faress’ personal liability under that guarantee.

3 It was in 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.

Continue reading Isak Constructions v Faress

Details

AGLC: Isak Constructions v Faress [2005] NSWSC 679
Case: [2005] NSWSC 679
Decision Date: 4 July 2005

CaseChat Overview and Summary

Isak Constructions was involved in a dispute with Faress, which was heard by the Supreme Court of Queensland. Faress had been granted leave to intervene in the litigation to enforce the rights of a company, which was a matter of significance to the proceedings. The central issue before the court was whether it had the jurisdiction to grant leave to the person who had previously been granted leave, to cease exercising that leave. Additionally, the court had to determine if a notice of motion could be filed and determined in proceedings that had already been dismissed.

The court examined the legal framework governing the granting and withdrawal of leave to intervene in litigation. It was established that the jurisdiction to grant leave was inherently linked to the court's authority to manage its own proceedings. The court concluded that it indeed possessed the power to withdraw leave previously granted, as the authority to manage its own proceedings encompassed the ability to alter or revoke such leave. The court further determined that the filing and determination of a notice of motion could occur even in proceedings that had been dismissed, provided that the motion related to the management of the proceedings themselves.

Based on these findings, the court granted the application to withdraw the leave previously granted to Faress to intervene in the litigation. The court's decision was grounded in its inherent jurisdiction to manage its own proceedings and maintain control over the litigation process. The court's authority to grant or withdraw leave to intervene was affirmed, and the ability to file and determine a notice of motion in dismissed proceedings was upheld, provided that the motion pertained to the management of the proceedings.

Orders