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

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

CaseChat Overview and Summary

In the matter of Parts Locating Services Pty Ltd, the applicant, Roger Neil McKinnon, sought relief against the respondent, Barry Meyer Isenberg, in the Federal Court of Australia. The case involved the application of Part 2.20 Rule 2 of the Federal Court Rules, and the applicant was seeking to challenge the actions of the respondent through a summary judgment. The case was heard in the Victoria District Registry of the General Division, presided over by Justice Heerey, on the 4th and 5th of May, 1992. The applicant was represented by Mr J R Dixon and Scanlan Carroll, while the respondent was represented by Mr P N Vickery and Darvall McCutcheon.

The primary legal issue before the court was whether to grant the summary judgment application made by the respondent. The respondent's application was based on the lack of evidence regarding the company's memorandum and articles of association, as well as the lack of evidence to support the applicant's claim of deadlock or justifiable lack of confidence in the company's management. The court needed to decide whether the respondent's application should be dismissed, allowing the applicant's case to proceed.

Justice Heerey determined that the summary judgment application should not be granted. The court found that the case was not one of the clearest cases where an applicant's case is absolutely hopeless. In dismissing the respondent's application, Justice Heerey noted that the applicant had indicated that the memorandum and articles of association would be tendered, and that the applicant could potentially make out a case of either deadlock or justifiable lack of confidence in the company's management. As such, the court found it undesirable to make any comment on the evidence at that stage and allowed the matter to proceed.

The court's decision resulted in the dismissal of the respondent's application for summary judgment. The matter will proceed to a full hearing to determine the merits of the applicant's claims against the respondent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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

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