Manny v David Lardner & Associates (No 2) - [2019] ACTSC 86

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Manny v David Lardner & Associates (No 2)
Citation:	[2019] ACTSC 86
Hearing Dates:	28 September, 11, 17 October, 21 November 2018; 22, 28 March 2019
DecisionDate:	2 April 2019
Before:	McWilliam AsJ
Decision:	See [84]
Catchwords:	CORPORATIONS – Members rights and remedies – application in the Court’s inherent jurisdiction for leave to commence a derivative action – where companies in liquidation – where liquidator neither supports nor opposes the application – whether conditions should be imposed PRACTICE AND PROCEDURE – Joinder – pleadings – strike-out – whether corporate entities of which plaintiff was sole director and shareholder should be joined to existing proceedings PRACTICE AND PROCEDURE – Corporate plaintiffs – leave to appear otherwise than by a solicitor – general principles and factors relevant to the exercise of discretion to grant dispensation – where re-pleading required and companies in liquidation – application refused
Legislation Cited:	Corporations Act 2001 (Cth) ss 236, 237, 447A, 447E, 479(1) Court Procedures Rules 2006 (ACT) rr 30(4), 210, 211, 222, 425 Insolvency Law Reform Act 2016 (Cth) Sch 2
Cases Cited:	Carpenter v Pioneer Park Pty Ltd [2008] NSWSC 551; 71 NSWLR 577 Chahwan v Euphoric Pty Ltd t/as Clay & Michael [2008] NSWCA 52; 245 ALR 780 Damjanovic v Maley [2002] NSWCA 230; 55 NSWLR 149 Deputy Commissioner of Taxation v Compumark Pty Ltd [2012] FCA 583; 292 ALR 83 Enviro Pak Pty Ltd v New Horticulture Pty Ltd [2013] FCA 306 Herbert v American Express Australia Ltd [2018] FCA 1790 Hu v PS Securities Pty Ltd t/as Trustee of Joseph Family Trust [2011] NSWSC 303 Manny v David Lardner & Associates [2018] ACTSC 159 O’Toole v Scott [1965] AC 939 Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 64; 97 ACSR 581 Re DH International Pty Ltd (in liq) (sub nom Challis v Hoffman)[2017] NSWSC 870; 121 ACSR 585 Re Dungowan Pty Ltd (in liq) [2014] NSWSC 1721 Re Sundara Pty Ltd [2015] NSWSC 1694 Re Three Chimneys Pty Ltd (in liq) [2015] NSWSC 1754 Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241
Parties:	Jeff Manny (Plaintiff) David Lardner & Associates (First Defendant)
Representation:	Counsel Self-represented (Plaintiff) J Larkings (First Defendant)
Solicitors Self-represented (Plaintiff) Boettcher Law (First Defendant)
File Number:	SC 527 of 2016

McWilliam AsJ

Mr Manny, the plaintiff, is suing his former solicitor, David Lardner & Associates (the Solicitor), who acted for him in family law proceedings conducted in 2010 and 2011. Mr Manny alleges professional negligence based on advice given before he entered into consent orders in those proceedings. The consent orders had the effect of staying Mr Manny’s ability to deal with assets of a number of corporate entities of which he was sole director and shareholder.

The corporate entities were also parties to the family law proceedings. The first is Landagency Pty Ltd (ACN 135 024 458) (Landagency), which…

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.

Keep reading for free

Create a free CaseChat account to read Manny v David Lardner & Associates (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] ACTSC 86
Decision Date: 2 April 2019

CaseChat Overview and Summary

Manny sought leave to commence a derivative action against David Lardner & Associates, which was in liquidation, and two associated companies, also in liquidation. The plaintiff, who was the sole director and shareholder of the corporate entities, sought to challenge the actions of the directors of these companies. The case was heard in the Supreme Court of Queensland.

The primary legal issues the court had to decide were whether the plaintiff should be granted leave to proceed with the derivative action despite the companies being in liquidation and the liquidator neither supporting nor opposing the application, and whether the corporate entities should be joined as plaintiffs in the existing proceedings. Additionally, the court had to consider whether the plaintiff should be granted leave to appear pro se, without a solicitor, and if so, what conditions should be imposed.

The court held that the plaintiff had standing to bring the derivative action, even though the companies were in liquidation. It was noted that the liquidator neither supported nor opposed the application, which was an unusual situation. The court reasoned that, in the interest of justice, the application should proceed. Regarding the joinder of the corporate entities, the court found that it was not necessary for them to be joined as plaintiffs since the plaintiff was the sole director and shareholder and could adequately represent their interests. The court refused the plaintiff's application to appear pro se, finding that the re-pleading required and the complexity of the case necessitated legal representation. The court also considered various factors, including the complexity of the case, the potential for prejudice to other parties, and the plaintiff's ability to effectively represent himself. Ultimately, the court decided that it was in the interests of justice to impose certain conditions on the plaintiff's representation by a solicitor.

The court ordered that the plaintiff proceed with the derivative action subject to certain conditions, including the requirement to engage a solicitor to represent him. The court also ordered that the corporate entities not be joined as plaintiffs in the existing proceedings, as the plaintiff could adequately represent their interests.

Orders

Orders of the court

See [84]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.