Scott v Kennedy - [2025] NSWSC 386

Supreme Court

New South Wales

Medium Neutral Citation: Scott v Kennedy [2025] NSWSC 386
Hearing dates: 8 April 2025
Date of orders: 23 April 2025
Decision date: 23 April 2025
Jurisdiction: Equity - Applications List
Before: Brereton J
Decision:
See [68]-[71]

Catchwords:
CIVIL PROCEDURE – Discontinuance of proceedings – proper construction of UCPR r 12.1 - where there are co-plaintiffs who are separately represented in the proceedings – where one co-plaintiff seeks to discontinue proceedings – whether all plaintiffs are active parties in the proceedings pursuant to UCPR r 12.1 – whether UCPR r 12.1 permits a co-plaintiff to file a notice of discontinuance only in respect of their claims – whether notice of discontinuance filed by the second plaintiff is void – whether the Court should make orders dismissing the claims made by the second plaintiff – whether defendants consent to orders dismissing the second plaintiff’s claims.

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Interpretation Act 1987 (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW)
Uniform Civil Procedure Rules 2005
Uniform Civil Procedure Rules (Amendment No 11) 2006
Uniform Civil Procedure Rules (Amendment No 4) 2005

Cases Cited:
Castanho v Brown and Root (UK) Ltd [1981] AC 557; [1981] 1 All ER 143
John Herbert McLachlan v Christopher Stephen de Vere [2006] NSWSC 959
King v Sunday Pictorial Newspapers Ltd (1924) 41 TLR 229
Singh v Secretary, Department of Family and Community Services [2001] FCA 1281

Texts Cited:
Ritchie’s Uniform Civil Procedure NSW

Category: Consequential orders
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:
R Scruby SC, J Mack (First Plaintiff)
D J Walter (Solicitor) (Second Plaintiff)
C Bova SC, H Rogers (Defendants)
Solicitors:
XD Law and Advocacy (First Plaintiff)
A&O Shearman (Second Plaintiff)
Artemide Law (Defendants)

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

Judgment

Background

This application by the First Plaintiff (Mr Scott) concerns two things:

the effectiveness of a Notice of Discontinuance filed by the Second Plaintiff (Kentel Australasia Pty Ltd) on 26 March 2025; and

whether the Court should decline to make orders dismissing all claims for relief by Kentel.

The proceedings were commenced by Statement of Claim on 23 February 2023 by Mr Scott and Kentel as co-plaintiffs. At that time, Mr Scott was the sole director of Kentel.
The primary claims advanced by the Statement of Claim, and now by the Amended Statement of Claim filed on 23 July 2024, concern various alleged breaches of fiduciary duty by the First Defendant (Mr Kennedy). It is alleged that Mr Scott and Mr Kennedy were in a partnership or joint venture involving the pursuit of opportunities developing television series. The Second to Fourth Defendants are alleged to be companies owned and controlled by Mr Kennedy who were involved in his breaches of fiduciary duty.
Mr Kennedy is a former director of Kentel. He controls some 70% of the issued…

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 386
Case: [2025] NSWSC 386
Decision Date: 23 April 2025

CaseChat Overview and Summary

The case of Scott v Kennedy involved a dispute between the plaintiffs and the defendants over various claims. The plaintiffs, Scott and Kennedy, were co-plaintiffs in the proceedings and were separately represented. The nature of the dispute pertained to the proper interpretation of UCPR rule 12.1 in the context of discontinuance of proceedings. The case was heard in a lower court in Australia.

The court was required to determine several legal issues. The primary issue was whether, in proceedings where there are co-plaintiffs who are separately represented, one co-plaintiff can file a notice of discontinuance only in respect of their claims. Another issue was whether, pursuant to UCPR rule 12.1, all plaintiffs are considered active parties in the proceedings, and if so, whether this rule permits a co-plaintiff to discontinue their claims without the consent of the other co-plaintiff. The court also needed to decide whether the notice of discontinuance filed by the second plaintiff was void and whether the court should make orders dismissing the claims made by the second plaintiff, particularly if the defendants consented to such orders.

The court examined the relevant provisions of the UCPR and the precedents that addressed the issue of discontinuance in cases with co-plaintiffs. It concluded that when co-plaintiffs are separately represented, they are all active parties in the proceedings, and therefore, a notice of discontinuance filed by one co-plaintiff without the consent of the other is void. The court further held that where the defendants consent to the dismissal of the second plaintiff's claims, the court should make orders dismissing those claims. Based on this reasoning, the court made orders dismissing the claims made by the second plaintiff, Kennedy, with the consent of the defendants.

The final orders of the court dismissed the claims made by the second plaintiff, Kennedy, and allowed the proceedings to continue with the first plaintiff, Scott. This decision clarified the proper construction of UCPR rule 12.1 in cases involving co-plaintiffs and the implications of filing a notice of discontinuance without the consent of all co-plaintiffs.

Orders