Lambourne v Baker

[2021] NSWCA 229

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Lambourne v Baker [2021] NSWCA 229

Hearing dates:

23, 24 June 2021

Date of orders:

24 September 2021

Decision date:

24 September 2021

Before:

Basten and Gleeson JJA at [1];
Emmett AJA at [33]

Decision:

Order that:

1. Judgment be entered in favour of the Third Appellant against the First Respondent in the sum of $210,249.

2. The appeal be otherwise dismissed.

3. The appellants further amended notice of motion filed on 23 June 2021 be dismissed.

3. There be no order as to costs in respect of the appeal and the proceedings below.

4. The parties may seek to reopen Order 3 by a notice of motion filed within 14 days in the ordinary course.

5. The record be altered to show that the name of the Third Respondent has been changed to “Betmakers Technology Group Limited”.

Catchwords:

CIVIL PROCEDURE — pleadings — implied abandonment — certain pleadings not expressly raised during trial — supporting evidence admitted — forensic decision by respondent to leave evidence unopposed — pleading unaddressed by primary judge — self-represented litigant — whether pleadings abandoned or merely overlooked in course of proceedings — remedy sought on appeal

EQUITY — equitable remedies — equitable compensation — availability — misappropriation of company funds by director — moneys applied for personal uses — recovery of moneys by company

EQUITY — fiduciary duties — breach — rule in Barnes v Addy — whether evidence of breach by primary wrongdoer established

Legislation Cited:

Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 18, 236

Corporations Act 2001 (Cth), ss 79, 180, 181, 182, 183, 1317H

Cases Cited:

Atkins v National Australia Bank (1994) 34 NSWLR 155

Barnes v Addy (1874) LR 9 Ch App 244

Brunninghausen v Glavanics (1999) 46 NSWLR 538; [1999] NSWCA 199

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Marc Alan Lambourne (First Appellant)
Glenn Craig Pollett (Second Appellant)
The Punters Show Pty Limited ACN 147 950 016 (Third Appellant)
Dallas Matthew Baker (First Respondent)
Todd Cameron Buckingham (Second Respondent)
Betmakers Technology Group Limited ACN 164 521 395 (formerly TopBetta Holdings Limited) (Third Respondent)
12Follow Pty Limited ACN 136 345 536 (Fourth Respondent)
Operis Momentus Pty Limited ACN 153 419 115 (Fifth Respondent)

Representation:

Counsel:
First Appellant (self-represented and with leave of the Court, on behalf of the Second and Third Appellants)
P Silver (Respondents)

Solicitors:
Cockburn & Co (Respondents)

File Number(s):

2019/407870

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2019] NSWSC 1777

Date of Decision:

13 December 2019

Before:

Rees J

File Number(s):

2016/344608

Judgment

1. BASTEN and GLEESON JJA: The appellants challenge orders made by Rees J in the Equity Division (Corporations List) dismissing proceedings brought by them against the respondents.1 The first two appellants, Marc Lambourne and Glenn Pollett, established an on-line business giving tips on horse-racing called the Punters Show. With the first respondent,…