McKinnon, R.N. v Isenberg, B.M

[1992] FCA 305

JUDGMENT No. m/ ....2 .2

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY	1	VG No. 3009 OF 1992
)
GENERAL DIVISION	1
B E T W E E N :

IN THE MATTER OF:  PARTS LOCATING SERVICES PTY LTD
ACN 006 982 262

ROGER NEIL MCKINNON

Applicant

BARRY MEYER ISENBERG

Judae : Heerey J

Place: Melbourne

Date:  4 May 1992

EX TEMPORE REASONS FOR JUDGMENT

I think I should not accede to Mr Vickery's
summary judgment under 0.20 r.2. It is clear that orders of
this nature will only be made in the clearest of cases when
the applicant's case is absolutely hopeless: General Steel

Industries Inc v Commissioner of Railwavs (NSW1 (1964) 112 CLR

will say no more as to that ground.

125.

Insofar as the respondent's application was based on Re Davis Investments [l9611 3 All ER 926 and the lack of evidence as to the memorandum and articles of association of the company, I think I should not allow the applicant's case to fail on a mere failure to advert to the tendering of what is obviously very relevant evidence. On the indication by M r Dixon for the applicant that the memorandum and articles will be tendered, I

As far as the evidence goes, it is not desirable that I should make any comment at this stage other than to say that it is possible that the applicant could make out a case of either deadlock in the way that that expression has been discussed 'in the cases or alternatively, a case of justifiable lack of confidence by the applicant, this being a company in the nature of a quasi-partnership.

In the latter case, it would seem that perhaps a case that does not amount to deadlock may nevertheless succeed under the justifiable lack of confidence heading. I refer to Windinq UD on the Just and Eauitable Ground by Frank Callaway, QC at page 87. So I will dismiss the respondent's application and the matter will proceed.

I certify that this and the preceding page are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

Counsel for the applicant:	Mr J R Dixon
Solicitors for the applicant:	Scanlan Carroll
Counsel for the respondent:	Mr P N Vickery
Solicitors for the respondent:	Darvall McCutcheon
Dates of hearing:	4 and 5 May 1992