O'Sullivan v Challenger Managed Investments Ltd - [2007] NSWSC 383

CITATION: Barbara Ann O’Sullivan v Challenger Managed Investments Ltd [2007] NSWSC 383

HEARING DATE(S): 12/12/06

JUDGMENT DATE :
24 April 2007

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: White J

DECISION: See paragraphs 74-75 of judgment.

CATCHWORDS: PROCEDURE – Supreme Court procedure – New South Wales – Procedure under Rules of court – Parties – Representative orders – “Same interest” – What constitutes – Parties have the “same interest” where declaration sought in which represented persons have a “common interest” and would benefit from such declaration – Claim for damages cannot be maintained on behalf of represented persons – Order that leave to bring representative action will be granted if pleadings amended so that representative action only brought in respect of declaration in which represented persons have the same interest – Uniform Civil Procedure Rules 2005 (NSW) r 7.4. - PROCEDURE – Supreme Court procedure – New South Wales – Procedure under Rules of court – Parties – Whether court should order that proceedings not be carried on as representative proceedings – Potential for multiplicity of proceedings – No less convenient for proceedings to be brought as representative proceedings than as an action with multiple plaintiffs under r 6.19 – No sufficient reason to order that plaintiff cannot seek declaration in representative action – Uniform Civil Procedure Rules 2005 (NSW) r 6.19, r 7.5.

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 (NSW)
Australian Securities and Investments Commission Act 2001 (Cth)
Supreme Court Act 1970 (NSW)
Fair Trading Act 1987 (NSW)
Credit Act 1984 (NSW)
Trade Practices Act 1974 (Cth)

CASES CITED: Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398
Campbell’s Cash & Carry Pty Ltd v Fostif Pty Ltd (2006) 80 ALJR 1441
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
A & M Short Pty Ltd v Prestige Residential Marketing Pty Ltd (2005) 194 FLR 32; 54 ACSR 760
The Duke of Bedford v Ellis [1901] AC 1
Fostif Pty Ltd v Campbell’s Cash & Carry Pty Ltd (2005) 67 NSWLR 203
Shepherd v Australian and New Zealand Banking Group Ltd (1996) 20 ACSR 81
Wong v Silkfield Pty Ltd (1999) 199 CLR 255
Lord Aberconway v Whetnall (1918) 87 LJCh 524
Prudential Assurance Co Ltd v Newman Industries Ltd [1981] 1 Ch 229
Beeching v Lloyd (1855) 3 Drew 227; 61 ER 890
Markt & Co Ltd v Knight Steamship Co Ltd [1910] 2 KB 1021
Jones v Cory Bros & Co Ltd; Thomas v Great Mountain Collieries Co (1921) 56 L Jo 302; 152 LT Jo 70
Cameron v National Mutual Life Association of Australasia Ltd (No. 2) [1992] 1 Qd R 133
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591
Payne v Young (1980) 145 CLR 609

PARTIES: Barbara Ann O’Sullivan
v
Challenger Managed Investments Ltd

FILE NUMBER(S): SC 4799/06

COUNSEL: Plaintiff: A Leopold, S Ipp
Defendant: P Whitford, M Henry, K Barrett

SOLICITORS: Plaintiff: Maurice Blackburn Cashman
Defendant: Arnold Bloch Leibler

IN THE SUPREME…

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

Case: [2007] NSWSC 383
Decision Date: 24 April 2007

CaseChat Overview and Summary

The case of O'Sullivan v Challenger Managed Investments Ltd involved a dispute concerning the eligibility of a representative action under the Uniform Civil Procedure Rules 2005 (NSW). The plaintiff, O'Sullivan, sought to bring a claim on behalf of other individuals against Challenger Managed Investments Ltd, primarily for a declaration and damages. The Supreme Court of New South Wales was tasked with determining whether the representative action was appropriately constituted and if the proceedings should continue as such.

The primary legal issues revolved around the interpretation of the term "same interest" in Rule 7.4 of the Uniform Civil Procedure Rules 2005 (NSW). The court needed to establish if the represented persons had a common interest that would benefit from the sought declaration and whether the claim for damages could be maintained on their behalf. Additionally, the court had to decide if the proceedings should be ordered not to be carried on as representative proceedings due to potential multiplicity of proceedings and whether there was a sufficient reason to prevent the plaintiff from seeking a declaration in the representative action under Rule 6.19.

The court found that for a representative action to be appropriate, the represented persons must have a "common interest" and stand to benefit from the declaration sought. The court determined that the claim for damages could not be maintained on behalf of the represented persons if they did not share the same interest in the declaration. Consequently, the court granted leave for the representative action to proceed, but only if the pleadings were amended to ensure the action was brought only in respect of the declaration in which the represented persons had the same interest. The court also held that there was no sufficient reason to order that the proceedings should not be carried on as representative proceedings, given that it was no less convenient for the proceedings to be brought this way than as an action with multiple plaintiffs. The court's reasoning was based on the understanding that representative actions could streamline litigation and protect the rights of numerous individuals with similar interests.

The final orders included a direction for the plaintiff to amend the pleadings to reflect the correct scope of the representative action, ensuring it was limited to the declaration for which all represented persons shared a common interest. The court maintained that the proceedings could proceed as representative proceedings, provided the amended pleadings met the criteria set out in the Uniform Civil Procedure Rules 2005 (NSW).

Orders