Manny v David Lardner Lawyers (No 2) - [2022] ACTCA 13

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Manny v David Lardner Lawyers (No 2)
Citation:	[2022] ACTCA 13
Hearing Date(s):	23 March 2022
DecisionDate:	23 March 2022
Before:	Elkaim J
Decision:	See [25]
Catchwords:	CIVIL LAW – APPEAL – application in proceeding –– where the appellant seeks leave to act on behalf of four companies – where three of those companies are in liquidation – requirements for notice of appeal under r 5403 of the Court Procedures Rules 2006 (ACT) – where the respondent makes an application in proceeding to strike out a further amended notice of appeal
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 30, 5403
Cases Cited:	Manny v David Lardner Lawyers(No 2) [2021] ACTSC 289 Manny v David Lardner Lawyers [2022] ACTCA 8 Manny v David Lardner & Associates (No 2) [2019] ACTSC 86
Parties:	J Manny ( Appellant) Ernest David Lardner & Kenneth William Power trading as David Lardner Lawyers ( Respondent)
Representation:	Counsel Self-represented ( Appellant) J Larkings ( Respondent)
Solicitors Self-represented ( Appellant) Boettcher Law ( Respondent)
File Number(s):	AC 59 of 2021
Decision under appeal:	Court/Tribunal: Supreme Court 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

Elkaim J

There were two applications before me today.

For convenience, for purposes of both applications, I will refer to Mr Manny as the applicant and to Lardner Lawyers, Kenneth William Power and David Lardner Lawyers Pty Ltd collectively as the respondent.

The first in time is an application, filed on 18 February 2022, requesting leave for the applicant to act on behalf of four companies.

The second, filed on 18 March 2022, is an application by the respondent to strike out a further amended notice of appeal filed on 11 March 2022.

The applicant wishes to appeal from a decision of Murrell CJ delivered on 5 November 2021 (Manny v David Lardner Lawyers(No 2) [2021] ACTSC 289).

The applicant and four companies were the plaintiffs before Murrell CJ. They lost. Verdicts were given for the defendants.

The four companies are Landagency Pty Ltd, Jeff Manny Constructions Pty Ltd (in liquidation), JK3L Pty Ltd (in liquidation) and Lonagann Pty Ltd (in liquidation).

The liquidator of the three companies in liquidation is not interested in pursuing the appeal. He initially refused to give consent to the applicant acting on behalf of the companies but, by a letter dated 17 March 2022, he has now stated:

I neither consent to, nor do I oppose your application to act for the companies in liquidation on the appeal but will leave the matter to be determined by the Court.

The current notice of appeal was filed with the leave of Acting Justice Berman given on 2 March 2022 (Manny v David Lardner Lawyers [2022] ACTCA 8). His Honour’s orders specifically do not permit the appeal to be…

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 13
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory considered two applications: one by Mr. Manny seeking leave to act on behalf of four companies, and another by the respondent, David Lardner Lawyers, to strike out a further amended notice of appeal. Mr. Manny sought to appeal a decision of Murrell CJ, in which he and the four companies, Landagency Pty Ltd, Jeff Manny Constructions Pty Ltd (in liquidation), JK3L Pty Ltd (in liquidation), and Lonagann Pty Ltd (in liquidation), were unsuccessful. The liquidators of the three companies in liquidation had indicated they neither consented to nor opposed Mr. Manny acting on behalf of those companies in the appeal.

The court was required to determine whether to grant Mr. Manny leave to act on behalf of the four companies, and whether the respondent's application to strike out the notice of appeal should be upheld. A key issue was compliance with rule 5403 of the Court Procedures Rules 2006 (ACT) regarding the requirements for a notice of appeal, particularly in light of a previous order that did not permit the appeal to be filed on behalf of any company in liquidation where the liquidator had not consented. The court also considered the requirements for a shareholder to bring proceedings on behalf of a company in liquidation, which falls within the court's general equitable jurisdiction.

Justice Elkaim reasoned that Mr. Manny, as the sole director and shareholder of Landagency Pty Ltd, had the company's authorisation to represent it, and granted leave for him to act on its behalf, noting that the company would be unable to pursue its appeal rights otherwise. Regarding the companies in liquidation, the court applied the principles established in previous decisions, considering whether the proposed proceedings had a solid foundation, the liquidator's attitude, and practical considerations for the protection of the liquidator and the company estates. While acknowledging the difficulty in assessing the appeal's foundation without a compliant notice, the court found that previous findings of potential dividends for creditors were sufficient to proceed. The liquidator's neutral stance, coupled with his disinterest in pursuing the appeal, allowed the court to consider granting leave, subject to cost protection.

The court granted Mr. Manny leave to act on behalf of all four companies and granted leave for the filing of a fresh notice of appeal within 28 days. Following this, the respondent was granted leave to file any applications to strike out the new notice of appeal and/or seek security for costs within a further 28 days. Mr. Manny was ordered to pay the respondent's costs for their application to strike out, with these costs deferred until the conclusion of the appeal. Each party was to bear their own costs for Mr. Manny's application for leave, subject to further order.

Orders