Manny v David Lardner Lawyers
[2022] ACTCA 8
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Manny v David Lardner Lawyers |
Citation: | [2022] ACTCA 8 |
Hearing Date(s): | 2 March 2022 |
DecisionDate: | 2 March 2022 |
Before: | Berman AJ |
Decision: | 1. By consent, the amended notice of appeal filed in this matter is struck out as incompetent. 2. The first appellant is granted leave to file a further notice of appeal which complies with the rules but may not purport to appeal on behalf of any corporation in liquidation where the liquidator has not given consent to that occurring. 3. The first appellant pay the costs of the respondent for the proceedings on 3 February 2022 and 2 March 2022 and for the costs thrown away because the first appellant filed an amended notice of appeal. |
Catchwords: | PROCEDURE – SUPREME COURT PROCEDURE – Strike Out Application – Where parties consented to strike out application in relation to amended notice of appeal due to non-compliance with rules – whether second, third and fourth respondents may be included as appellants – where those respondents are companies in liquidation |
Legislation Cited: | Corporations Act2001 (Cth), ss 198G, 477(2)(a) |
Cases Cited: | Manny v David Lardner & Associates (No 2) [2019] ACTSC 86 |
Parties: | J Manny (First Appellant) Jeff Manny Constructions Pty Ltd (Second Appellant) JK3L Pty Ltd (Third Appellant) Lonagann Pty Ltd (Fourth Appellant) Landagency Pty Ltd (Fifth Appellant) E D Lardner & K W Power trading as David Lardner Lawyers (First Respondent) K W Power (Fourth Respondent) David Lardner Lawyers Pty Ltd (Fifth Respondent) |
Representation: | Counsel Self-represented (First Appellant) J Larkings (Respondents) |
| Solicitors Self-represented (Appellant) Boettcher Law (Respondents) | |
File Number(s): | AC 59 of 2021 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Murrell CJ Date of Decision: 5 November 2021 Case Title: Manny v David Lardner Lawyers (No 2) Citation: [2021] ACTSC 289 Court File Number(s): SC 527 of 2016 |
BERMAN AJ:
I am dealing with an application in proceedings brought by the respondent to an appeal. I received evidence by way of affidavit and read written submissions in support of the application and heard oral submissions and read written submissions from the first appellant.
The matter began by Mr Larkings, who appears for the respondents, asking me to strike out the notice of appeal as it did not comply with various court procedure rules and in particular due to its prolixity. The notice of appeal and the amended notice of appeal filed recently were not drafted by a lawyer and there are serious deficiencies with them.
It is not necessary to detail further what those deficiencies are because Mr Manny, the first appellant and the person who drafted the notices of appeal, accepts that the amended notice of appeal should be struck out as being incompetent in circumstances where the respondents have no objection to Mr Manny being given leave to file a further notice of appeal which does comply with the rules. There is one issue, however, that remains to be determined and that is whether that further notice of appeal may include the present second, third and fourth appellants as appellants. Those companies are in liquidation.
The evidence before me establishes that the liquidator has not consented to those companies becoming appellants in the matter. Mr Larkings submits that the order I make granting leave to Mr Manny to file a further notice of appeal should also include an order that that notice of appeal not include the present second, third and fourth appellants. Mr Manny resists the making of that order although, as I have already indicated, consents to the present amended notice of appeal being struck out.
The evidence establishes that the second, third and fourth appellants are, indeed, in liquidation. Mr Manny did not challenge that aspect of the evidence. By a letter dated 2 February 2022, the solicitor for the liquidator wrote to Mr Larkings' instructing solicitors saying the liquidator has not been asked to consent to the appeal and has not consented. Mr Manny relied on another letter but the letter Mr Manny relied on fell far short of the liquidator consenting to the appeal. It merely expressed an interest in the outcome of the proceedings.
Section 198G of the Corporations Act2001 (Cth) (the Corporations Act) provides that once a company enters liquidation any officer of the company must not exercise a power in relation to that company.
Thus pursuant to s 477(2)(a) of the Corporations Act, the liquidator is the only person who is authorised to bring legal proceedings in the names of those companies. There is a Court Procedure Rule too which is relevant; r 5404(3) of the Court Procedure Rules 2006 (ACT). Pursuant to that rule, consent of the liquidator is also required. Mr Manny, in response to the matters I have just referred to, relied on something said by McWilliam AsJ in Manny v David Lardner & Associates (No 2) [2019] ACTSC 86. Her Honour's grant of leave likely does not extend to these appeal proceedings, but in any case, that grant of leave was subject to several conditions including one that the companies be represented by a solicitor until further order. The companies are not represented by a solicitor. The liquidator has expressed the view that there are no funds to pay for one and no solicitor has sought to represent the companies in liquidation.
Thus, whatever the status of her Honour's orders made in 2019, the grant of leave of her Honour was subject to a number of conditions, one of which is not complied with. In such circumstances, Mr Manny cannot gain any comfort from such orders. Accordingly, consent by the liquidator being an essential prerequisite to the companies in liquidation being appellants, it is appropriate that the grant of leave which I propose giving to Mr Manny to file a new notice of appeal should also include a qualification, namely that the new notice of appeal not include as an appellant any company in liquidation where the liquidator has not consented to the corporation becoming an appellant.
The orders I make are these.
(a) By consent, the amended notice of appeal filed in this matter is struck out as incompetent.
(b) The first appellant is granted leave to file a further notice of appeal which complies with the rules but may not purport to appeal on behalf of any corporation in liquidation where the liquidator has not given consent to that occurring.
Costs are sought by the respondents for the proceedings on 3 February 2022, for today's proceedings and for the costs thrown away because Mr Manny filed an amended notice of appeal. It is fair to say that the application has been resolved completely in the respondents' favour. As I noted earlier, Mr Manny even consented to the amended notice of appeal being struck out accepting that it did not comply with the rules. In such circumstances, there is no reason why the ordinary rule should not apply. That is, that Mr Manny pays the costs of the respondent in those three categories I have outlined.
| I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman Associate: Date: |
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