JUDGE:	Randall AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February 2020, 13 March 2020, and 25 March 2020
DATE OF RULING:	11 May 2021
CASE MAY BE CITED AS:	Stuart v Mordialloc Sporting Club Inc; John Barr Investments Pty Ltd v Mordialloc Sporting Club Inc
MEDIUM NEUTRAL CITATION:	[2021] VSC 244

---

PRACTICE AND PROCEDURE – Pleadings – Application to file a further amended statement of claim – Rule 36.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Rule 36.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Rule 13.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Claims made pursuant to the Associations Incorporation Reform Act 2012 (Vic) (‘the Act’) – Oppressive conduct pursuant to s 68 of the Act – Claims to set aside agreements relating to the sale of the club’s property pursuant to s 36 of the Act – Compensation pursuant to s 36 of the Act – Enforcement of rules pursuant to s 67 of the Act – Whether or not the proposed further amended statement of claim is embarrassing.

PRACTICE AND PROCEDURE – Application to join the proceeding – Rule 9.06(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Application to intervene in the proceeding – Whether or not the rights or liabilities of the proposed party are directly affected – Giving effect to the overarching purpose of the Civil Procedure Act 2010 (Vic) – Imposing conditions on joinder.

PRACTICE AND PROCEDURE – Application for costs of complying with subpoenas – Rule 42.11 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Rule 63.20.1 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Whether or not a subpoenaed person is entitled to costs of complying with a subpoena in circumstances where the subpoenaed person seeks to join the proceeding – Whether or not the costs claimed are reasonable – Whether or not costs ought to be taxed immediately.

---

APPEARANCES FOR S ECI 2018 01124:	Counsel	Solicitors
For the Plaintiff	Mr W Stark	Mahons with Yuncken & Yuncken Lawyers
For the First Defendant	Dr A Hanak QC, with Dr E Kelly	Fitzpatrick Legal Pty Ltd
For the Second to Fifth Defendants	Ms K E Foley	Lander & Rogers
For the Sixth Defendant	Mr N Frenkel	HWL Ebsworth Lawyers
For the Seventh Defendant	Mr M J Hoyne	Ralph Manno
For the proposed Fourteenth Defendant	Mr T North QC, with Mr D O’Brien	McDonald Slater & Lay

APPEARANCES…

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 Stuart v Mordialloc Sporting Club Inc

Details

AGLC: Stuart v Mordialloc Sporting Club Inc; John Barr Investments Pty Ltd v Mordialloc Sporting Club Inc [2021] VSC 244
Case: [2021] VSC 244
Decision Date: 11 May 2021

CaseChat Overview and Summary

Stuart, the plaintiff, initiated proceedings against Mordialloc Sporting Club Inc, the defendant, in the Supreme Court of Victoria. The dispute centred on claims of oppressive conduct, requests to set aside agreements related to the sale of the club's property, compensation for the alleged oppressive conduct, and enforcement of rules under the Associations Incorporation Reform Act 2012 (Vic). The case involved an application by Stuart to file a further amended statement of claim, to join a proceeding, and to intervene in the proceeding, as well as an application for costs of complying with subpoenas. The court was required to determine whether the proposed further amended statement of claim was embarrassing, whether the proposed party's rights or liabilities were directly affected, and whether the costs claimed were reasonable and ought to be taxed immediately.

The court examined the applications and submissions from both parties, considering the relevant rules of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and the overarching purpose of the Civil Procedure Act 2010 (Vic). The court assessed whether the proposed further amended statement of claim would cause embarrassment to the defendant and whether the proposed party's rights or liabilities were directly affected. The court also considered the reasonableness of the costs claimed and whether they ought to be taxed immediately. After careful consideration, the court found that the proposed further amended statement of claim was not embarrassing, and the proposed party's rights or liabilities were directly affected. The court further determined that the costs claimed were reasonable and ought to be taxed immediately.

In light of the findings, the court granted Stuart's application to file a further amended statement of claim, allowed the proposed party to join the proceeding, and permitted the proposed party to intervene in the proceeding. The court also granted Stuart's application for costs of complying with subpoenas, with the costs to be taxed immediately. The final orders of the court were that Stuart was permitted to file a further amended statement of claim, the proposed party was allowed to join and intervene in the proceeding, and the costs of complying with subpoenas were to be taxed immediately and paid by the defendant.

Orders