Manny v David Lardner Lawyers (No 2)

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.