McEvoy v Caplan

[2010] NSWCA 115

NEW SOUTH WALES COURT OF APPEAL

CITATION:
McEvoy v Caplan [2010] NSWCA 115
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2009/00298383

HEARING DATE(S):
4 May 2010

JUDGMENT DATE:
25 May 2010

PARTIES:
John Albert Christopher McEvoy (Appellant)
Benjamin Saul Caplan (First Respondent)
Phillip William Leslie (Second Respondent)
Warren Richard Lesnie (Third Respondent)
Metro Hotel Sydney Pty Ltd (Fourth Respondent)
Transmetro Corporation Ltd (Fifth Respondent)
Kol Tov Pty Ltd (Sixth Respondent)
Kol Tov Operations Pty Ltd (Seventh Respondent)

JUDGMENT OF:
Allsop P Beazley JA Macfarlan JA   

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
SC 5576/2007

LOWER COURT JUDICIAL OFFICER:
Barrett J

LOWER COURT DATE OF DECISION:
5 May 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
Transmetro Corp Ltd v Kol Tov Pty Ltd [2009] NSWSC 350

COUNSEL:
J C Kelly SC/G M McGrath (Appellant)
R Beech-Jones SC/J Kay Hoyle (First, Second and Third Respondents)

SOLICITORS:
Staunton & Thompson (Appellant, Fourth and Fifth Respondents)
Somerset Ryckmans (First, Second, Third, Sixth and Seventh Respondents)

CATCHWORDS:
CORPORATIONS - statutory derivative action - application under s 237 Corporations Act 2001 (Cth) for leave to bring proceedings on behalf of two companies by way of cross-claim - grant of application would have given rise to conflict of duties - grant of leave not in the best interests of the companies
APPEAL - whether appeal lies as of right - order dismissing application under s 237 Corporations Act 2001 (Cth) for leave to bring proceedings on behalf of two companies - statutory derivative action - lower court decision interlocutory - leave to appeal required

LEGISLATION CITED:
Corporations Act 2001 (Cth)
Supreme Court Act 1970

CATEGORY:
Principal judgment

CASES CITED:
Carr v Finance Corporation of Australia Ltd [1981] HCA 20; (1981) 147 CLR 246
Licul v Corney [1976] HCA 6; (1976) 180 CLR 213
Malouf v Malouf [1999] FCA 284; (1999) 86 FCR 134

TEXTS CITED:

DECISION:
(1)  The appeal is dismissed as incompetent;
(2)  Mr McEvoy is refused leave to appeal; and
(3)  Order that Mr McEvoy pay the costs of the respondents in relation to the proceedings in this Court.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 2009/00298383

ALLSOP P
BEAZLEY JA
MACFARLAN JA

25 May 2010

McEVOY v CAPLAN

Judgment

1. ALLSOP P:  I agree with Macfarlan JA.

2. BEAZLEY JA:  I agree with Macfarlan JA.

3. MACFARLAN JA: Mr McEvoy seeks to appeal as of right from an order of Barrett J dismissing his application for a grant of leave under s 237 of the Corporations Act 2001 (Cth) to bring proceedings on behalf of two companies, Kol Tov Pty Ltd (“KT”) and its parent company Kol Tov Operations Pty Ltd (“KTO”). The parties have proceeded upon the basis that, in the alternative, Mr McEvoy seeks leave to appeal against the making of the primary judge’s order.

4. The order made by the primary judge was in my view interlocutory as it…