TRUSTS - Practice and Procedure - corporate trustee - receiver and manager appointed to corporate trustee - 1 class of beneficiaries comprised of directors of corporate trustee - directors sought to file application in name of corporate trustee - receiver and manager refused consent - corporate trustee named as respondent to application - whether competent for trust beneficiaries to commence application against 3rd parties on behalf of trust - whether equitable rule allowing beneficiaries to sue 3rd parties in exceptional circumstances confined to actions seeking equitable relief - post judicature procedure.
TRUSTS - Practice and Procedure - corporate trustee - whether competent for trust beneficiaries to commence application against 3rd parties on behalf of trust - exceptional circumstances required - actions by corporate trustee inter alia challenge debentures and appointment of receiver and manager.
PRACTICE AND PROCEDURE - Parties - unwilling applicant named as respondent - subsequent consent of unwilling applicant - desirability of regulating conduct of proceedings - corporate trustee removed as respondent and named as 3rd applicant.
PRACTICE AND PROCEDURE - Abuse of Process - similar or same application lodged in same court 3 years after filing of first application - application involved same parties and same subject matter - whether abuse of process - power of court to stay similar proceedings where resolution of one will effectively dispose of the other.
Federal Court Rules O11 r16; O20 r2
PRACTICE AND PROCEDURE - Amendment to Pleadings - whether amendments introduce new causes of action which are statute barred - rule in Weldon v Neal - whether amendment 'just' - whether new cause of action arises out of 'same' or 'substantially similar facts'.
Federal Court Act1976, s59(2B) Federal Court Rules O13r2(2); O13r2(7)
PRACTICE AND PROCEDURE - Cause of Action - when cause of action accrues - whether fresh cause of action or instance of damage - whether fresh cause of action can be added to existing applications.
JAMES LIDDEN AND MARGARET THERESE LIDDEN v COMPOSITE BUYERS LIMITED AND OTHERS No ACT G19 of 1992
JAMES LIDDEN, MARGARET THERESE LIDDEN AND LIGON 105 PTY LIMITED v COMPOSITE BUYERS LIMITED AND OTHERS No ACT G67 of 1995
FINN J
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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AGLC
Lidden v Composite Buyers Ltd [1996] FCA 728
Case
[1996] FCA 728
Decision Date
CaseChat Overview and Summary
The Federal Court was presented with two notices of motion arising from two separate proceedings between the same parties. James and Margaret Lidden, along with Ligon 105 Pty Ltd, sought relief against Composite Buyers Ltd and Payless Superbarn (NSW) Pty Ltd in both proceedings, which were based on similar facts. The court was required to decide whether the Liddens could institute proceedings on behalf of Ligon, whether it was just to allow an amendment to the pleadings in the 1992 proceedings to match the 1995 proceedings, and whether the 1995 proceedings were an abuse of process. The court held that the Liddens could institute proceedings on behalf of Ligon, as long as the circumstances were exceptional. The court also found it just to allow the amendment to the pleadings in the 1992 proceedings to match the 1995 proceedings, despite the introduction of new causes of action. Lastly, the court refused to strike out or dismiss the 1995 proceedings, as the applicants had a valid reason to institute them to guard against the contingency of a later arising cause of action.
The orders of the court were to grant leave to the applicants to join Ligon 105 Pty Ltd as an applicant in the 1992 proceedings, strike out Ligon 105 Pty Ltd as a respondent in the same proceedings, allow the amendment to the pleadings in the 1992 proceedings to match the 1995 proceedings, and order that both proceedings be tried at the same time with evidence shared between them. In the 1995 proceedings, the court dismissed the notice of motion and reserved costs.