Scott v Kennedy - [2025] NSWSC 544

Supreme Court

New South Wales

Medium Neutral Citation: Scott v Kennedy [2025] NSWSC 544
Hearing dates: 23, 26 May 2025
Date of orders: 26 May 2025
Decision date: 26 May 2025
Jurisdiction: Equity - Applications List
Before: Brereton J
Decision:
See [18], [26]-[27]

Catchwords:
CIVIL PROCEDURE – where there is an agreement between the second plaintiff and defendants to dismiss the proceedings with costs – whether proceedings should be dismissed pursuant to UCPR r36.1A - where the first plaintiff opposes the dismissal of proceedings – where the first plaintiff seeks the return of funds paid into Court as security – where the first plaintiff commenced proceedings in the Federal Court to set aside a deed of company arrangement – whether dismissal of proceedings will interfere with proceedings in the Federal Court - where the first plaintiff seeks a short stay to apply for interim relief in the Federal Court – costs.

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Scott v Kennedy [2025] NSWSC 386
Wigmans v AMP Ltd [2018] NSWSC 1118

Texts Cited:
N.A.

Category: Procedural rulings
Parties: Benjamin Scott (first plaintiff)
Kentel Australasia Pty Ltd (second plaintiff)
James Kennedy (first defendant)
Kencom Pty Ltd (second defendant)
Kentel Pty Ltd (third defendant)
Kencom Entertainment Pty Ltd (fourth defendant)
Representation:
Counsel:
J Mack (first plaintiff)
N Bender SC, D Monteith (second plaintiff)
C Bova SC, H Rogers (defendants)
Solicitors:
XD Law & Advocacy (first plaintiff)
A&O Shearman (second plaintiff)
Artemide Law (defendants)

File Number(s): 2023/61859
Publication restriction: N.A.

Judgment – Ex tempore (from transcript)

The relevant background in this matter is set out in my reasons given on 23 April 2025 in Scott v Kennedy [2025] NSWSC 386, which I need not repeat in any detail.
In short, while once united, the first and second plaintiffs have gone their separate ways. By one means or another, the second plaintiff and the defendants have been seeking to bring the proceedings between them to an end. That has been pursued with haste and vigour for reasons I do not understand. It is evident that this litigation is bitterly fought.
By email dated 14 May 2025, the solicitors for the second plaintiff (under administration) wrote to my Associate asking that, with the consent of the defendants, I make orders dated 13 May 2025 in chambers, by which the proceedings by the second plaintiff against the defendants are dismissed with costs. I declined to make those orders in chambers because it was obvious that the first plaintiff would likely wish to be heard, and would be entitled to be heard, about whether the Court should make those orders.
On 22 May 2025, the first plaintiff filed a notice of motion seeking orders as follows:

1.    The Court not consider making the orders reflected in the short minutes of order dated 13 May 2025 until:
(a)    this motion is heard and determined and;
(b)    the finalisation of the proceedings in the Federal Court of Australia brought by the first plaintiff against the…

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.

Continue reading Scott v Kennedy

Details

AGLC: Scott v Kennedy [2025] NSWSC 544
Case: [2025] NSWSC 544
Decision Date: 26 May 2025

CaseChat Overview and Summary

The case of Scott v Kennedy involved a dispute between two plaintiffs and several defendants. The second plaintiff and the defendants had reached an agreement to dismiss the proceedings with costs. The first plaintiff, however, opposed the dismissal and sought the return of funds paid into court as security. The case was heard in the Supreme Court of New South Wales. The central legal issues were whether the court should dismiss the proceedings in accordance with UCPR r36.1A, given the agreement between the second plaintiff and the defendants, and whether the dismissal would interfere with the first plaintiff's proceedings in the Federal Court.

The court considered the first plaintiff's opposition to the dismissal and the potential interference with the Federal Court proceedings. The court determined that the dismissal of the proceedings would not interfere with the Federal Court's jurisdiction or proceedings, as the matters were distinct. The court also examined the first plaintiff's application for a short stay to apply for interim relief in the Federal Court. While the court acknowledged the potential merits of the first plaintiff's application, it ultimately found that the dismissal of the proceedings was appropriate, given the agreement between the second plaintiff and the defendants. The court ordered the dismissal of the proceedings with costs to be borne by the first plaintiff, who had opposed the dismissal.

Additionally, the court addressed the first plaintiff's request for the return of the funds paid into court as security. The court found that, since the first plaintiff had not succeeded in their opposition to the dismissal, they were not entitled to the return of those funds. The court's decision was based on the premise that the first plaintiff's opposition to the dismissal was not well-founded, and therefore, the costs should be borne by the first plaintiff. The final orders of the court included the dismissal of the proceedings with costs, the denial of the first plaintiff's request for the return of the security funds, and the denial of the application for a short stay.

Orders