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) Court Procedure Rules 2006 (ACT), r 5404(3)
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,…

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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Details

Case: [2022] ACTCA 8
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the matter of *Manny v David Lardner Lawyers* concerned an application to strike out an amended notice of appeal. The first appellant, Mr Manny, represented himself, while the respondents were represented by legal practitioners. The core of the dispute revolved around the competency of the amended notice of appeal and whether companies in liquidation could be included as appellants without the liquidator's consent.

The court was required to determine two primary legal issues. Firstly, whether the amended notice of appeal should be struck out as incompetent due to non-compliance with court rules, particularly concerning its prolixity and deficiencies. Secondly, and more significantly, whether the first appellant could be granted leave to file a further notice of appeal that included companies in liquidation as appellants, given that their respective liquidators had not provided consent.

The court found that the amended notice of appeal was indeed incompetent and, by consent of the parties, ordered it to be struck out. Regarding the inclusion of the companies in liquidation as appellants, the court reasoned that under section 477(2)(a) of the *Corporations Act 2001* (Cth), the liquidator is the sole authority empowered to bring legal proceedings on behalf of a company in liquidation. Furthermore, rule 5404(3) of the *Court Procedure Rules 2006* (ACT) also requires the liquidator's consent. As the evidence clearly established that the liquidators had not consented, and one of the conditions of a previous grant of leave from 2019 was not met, the court held that these companies could not be included as appellants.

Consequently, the court granted the first appellant leave to file a further notice of appeal that complied with the rules, but expressly prohibited the inclusion of any corporation in liquidation unless the liquidator had provided their consent. The first appellant was also ordered to pay the respondents' costs for the proceedings on 3 February 2022 and 2 March 2022, as well as the costs thrown away due to the filing of the incompetent amended notice of appeal.

Orders