Michael Jeffrey Hawksford & Ors v Brett Paul Hawksford & Ors;Brett Paul Hawksford & Ors v Michael Jeffrey Hawksford & Ors - [2006] NSWSC 1458

Reported Decision:
61 ACSR 27

New South Wales

Supreme Court

CITATION: Michael Jeffrey Hawksford & Ors v Brett Paul Hawksford & Ors;Brett Paul Hawksford & Ors v Michael Jeffrey Hawksford & Ors [2006] NSWSC 1458

HEARING DATE(S): 18/12/06

JUDGMENT DATE :
18 December 2006

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 12/18/2006

DECISION: See paragraph 43 of judgment.

CATCHWORDS: CORPORATIONS – Membership, rights and remedies – Members’ remedies and internal disputes – Proceedings on behalf of company by member – Progression of proceedings no. 4348/04 and proceedings no. 3487/05 deadlocked by failure of natural parties to resolve question of corporate parties’ representation – Where both proceedings have consumed substantial judicial resources and threaten to continue to do so – Whether exercise of Court’s powers to facilitate just, quick and cheap resolution of real issues in both proceedings inconsistent with Chapter 2F Corporations Act 2001 (Cth) – s 79 Judiciary Act 1903 (Cth) considered – Held that exercise of Court’s powers under s 61 Civil Procedure Act 2005 (NSW) and s 23 Supreme Court Act 1970 (NSW) not inconsistent with Corporations Act – Order that each natural party have leave to defend, on behalf of the corporate parties, claims which the opposite natural party is bringing against the corporate parties.

LEGISLATION CITED: Corporations Act 2001 (Cth)
Judiciary Act 1903 (Cth)
Supreme Court Act 1970 (NSW)
Civil Procedure Act 2005 (NSW)

CASES CITED: Hawksford v Hawksford [2005] NSWSC 463

PARTIES: Michael Jeffrey Hawksford & Ors
v
Brett Paul Hawksford & Ors;
Brett Paul Hawksford & Ors
v
Michael Jeffrey Hawksford & Ors

FILE NUMBER(S): SC 3487/05; 4348/04

COUNSEL: Plaintiffs: G K J Rich (3487/05)
Defendants: A Tsekouras (3487/05)

SOLICITORS: Plaintiffs: Clayton Utz
Defendants: Evangelos Patakas & Associates

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

WHITE J

Monday, 18 December 2006

3487/05 Michael Jeffrey Hawksford & Ors v Brett Paul Hawksford & Ors
4348/04 Brett Paul Hawksford & Ors v Michael Jeffrey Hawksford & Ors

JUDGMENT

1 HIS HONOUR: Proceedings no. 3487 of 2005 are before me for directions. These proceedings are a consequence of orders made by Campbell J in proceedings no. 4348 of 2004 (Hawksford v Hawksford [2005] NSWSC 463 (“the 2004 proceedings”)). In the 2004 proceedings, the plaintiffs are Mr Brett Hawksford and Brett Hawksford Management Pty Ltd. The allegations in the 2004 proceedings are summarised in Campbell J's reasons and I need not repeat his Honour’s summary.

2 It suffices to say that Mr Brett Hawksford and his company seek relief under an agreement of 30 October 1991 entered into between Mr Michael Hawksford, Mr Brett Hawksford and Bremick Pty Ltd. Amongst other things, Mr Brett Hawksford claims orders to compel Bremick and BMB Investments Pty Ltd to pay dividends. Orders are also sought to require Bremick to pay Mr Brett Hawksford certain moneys representing the value of benefits said to have been obtained by Mr Michael Hawksford.

3 On 16 May 2005, Campbell J…

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.

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Details

AGLC: Michael Jeffrey Hawksford and Ors v Brett Paul Hawksford and Ors;Brett Paul Hawksford and Ors v Michael Jeffrey Hawksford and Ors [2006] NSWSC 1458
Case: [2006] NSWSC 1458
Decision Date: 18/12/2006

CaseChat Overview and Summary

The case involves a dispute between two parties, Michael Jeffrey Hawksford and others versus Brett Paul Hawksford and others, and vice versa. The case centres on the representation of corporate parties in legal proceedings. The proceedings in question are two separate cases, 4348/04 and 3487/05, which have been deadlocked due to the failure of the natural parties to resolve the issue of corporate party representation. The deadlock has led to a significant consumption of judicial resources and the potential for further delays. The court was required to determine whether exercising its powers to facilitate a just, quick, and inexpensive resolution of the issues would be inconsistent with the Corporations Act 2001 (Cth) and the Judiciary Act 1903 (Cth).

The court examined the relevant provisions of the Corporations Act 2001 (Cth) and the Judiciary Act 1903 (Cth) to determine whether the exercise of its powers under the Civil Procedure Act 2005 (NSW) and the Supreme Court Act 1970 (NSW) would be inconsistent with these Acts. The court found that the exercise of its powers was not inconsistent with the Corporations Act 2001 (Cth) and the Judiciary Act 1903 (Cth). The court also considered the need for a just, quick, and inexpensive resolution of the issues in the proceedings.

The court ordered that each natural party have leave to defend, on behalf of the corporate parties, the claims which the opposite natural party is bringing against the corporate parties. This decision allows for a more efficient resolution of the issues in the proceedings and prevents further delays and the consumption of judicial resources. The court's decision to exercise its powers under the Civil Procedure Act 2005 (NSW) and the Supreme Court Act 1970 (NSW) was not inconsistent with the Corporations Act 2001 (Cth) and the Judiciary Act 1903 (Cth), and it facilitated a just, quick, and inexpensive resolution of the issues in the proceedings.

Orders