MCH Australia Pty Ltd v Kee Doery - [2019] VSC 412

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S ECI 2018 00064

MCH AUSTRALIA PTY LTD (ACN 111 674 992)	Plaintiff
v
KEE DOERY AND OTHERS (ACCORDING TO THE ATTACHED SCHEDULE)	Defendants

---

JUDGE:	KENNEDY J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 June 2019
DATE OF JUDGMENT:	26 July 2019
CASE MAY BE CITED AS:	MCH Australia Pty Ltd v Kee Doery & Ors
MEDIUM NEUTRAL CITATION:	[2019] VSC 412

---

PRACTICE AND PROCEDURE – Application by third defendant to strike out parts of statement of claim pursuant to rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 - Leave to amend appropriate - Application for summary judgment – Application refused given failure to establish that no real prospects of success under section 63 of the Civil Procedure Act 2010 (Vic) – Discretion exercised as alternative under section 64 of the Civil Procedure Act 2010 (Vic).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr A Hanak SC	Arnold Bloch Liebler
For the Third Defendant	Mr P Noonan	Earl & Associates

HER HONOUR:

This application arises in a proceeding wherein the plaintiff, MCH Australia Pty Ltd (MCH), seeks various relief against two former directors/employees, Mr Kee Doery and Mr Ari Luo (and their associated companies), for conduct involving the diversion of customers and the setting up of a competitor business engaged in selling home brewing products.

In particular, the application arises in the context of claims that Mr Doery was involved in the incorporation of the third defendant, Kegland Distribution Pty Ltd (Kegland), and that Kegland knew, and was involved in, two particular contraventions of s 183 of the Corporations Act (the Act) by Mr Doery as follows:

·that Mr Doery improperly used an ‘MCH Price List’ to gain an advantage for Kegland, or to cause a detriment to MCH, in breach of s 183 of the Act (Price List Claim); and
·that Mr Doery improperly used ‘MCH Customer Information’ to gain an advantage for Kegland, or to cause a detriment to MCH, in breach of s 183 of the Act (Customer List Claim).

The issue before the court is, first, whether it should strike out all/part of the Price List Claim contained in the Further Amended Statement of Claim[1] pursuant to rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules). Alternatively, whether summary judgment is appropriate on that claim.
[1]Further Amended Statement of Claim dated 14 June 2019; Leave was given to file this document at the hearing on 12 June 2019 with the third defendant preserving their rights to make the application herein.

Secondly, the issue is whether summary judgment ought be granted in relation to the Customer List Claim.[2]
[2]Although the Amended Summons sought to strike out part of this claim, this was not pursued at the hearing: See Transcript of Proceedings (MCH Australia Pty Ltd v Kee Doery & Ors, S ECI…

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.

Keep reading for free

Create a free CaseChat account to read MCH Australia Pty Ltd v Kee Doery and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] VSC 412
Decision Date: 26 July 2019

CaseChat Overview and Summary

MCH Australia Pty Ltd brought an action against two other parties in the Supreme Court of Victoria, seeking to enforce contractual obligations. The third defendant moved to strike out parts of the statement of claim and subsequently applied for summary judgment. The court had to determine whether the application to strike out was justified under rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 and whether the application for summary judgment should be granted under section 63 of the Civil Procedure Act 2010 (Vic).

The court found that the application to strike out was not appropriate as leave to amend the statement of claim would be sufficient to address any deficiencies. The third defendant failed to demonstrate that there were no real prospects of success for the plaintiff's claim, thus the court declined to grant the application for summary judgment. The court exercised its discretion under section 64 of the Civil Procedure Act 2010 (Vic) as an alternative to refusing the summary judgment application.

The court refused the application to strike out parts of the statement of claim, allowing the plaintiff an opportunity to amend. The court also refused the application for summary judgment, finding that the third defendant had not established that there were no real prospects of success for the plaintiff's claim. The third defendant was ordered to pay the plaintiff's costs of the application for summary judgment.

Orders