Van Tonder v Hodgkinson - [2012] NSWLEC 86

Land and Environment Court

New South Wales

Medium Neutral Citation: Van Tonder v Hodgkinson [2012] NSWLEC 86
Hearing dates: 24 April 2012
Decision date: 24 April 2012
Jurisdiction: Class 3
Before: Biscoe J
Decision:
(1) The proceedings are dismissed; (2) The applicant is to pay the respondents' costs of the proceedings.

Catchwords: PRACTICE AND PROCEDURE:- motions for summary dismissal of purported Class 3 proceedings on grounds that no reasonable cause of action disclosed, the Court possesses no jurisdiction to entertain the proceedings and the proceedings are an abuse of process of the Court.
Legislation Cited: Conveyancing Act 1919 ss 88K, 177, 196A
Crown Lands Act 1989 s 29
Encroachment of Buildings Act 1922 ss 2, 3
Environmental Planning and Assessment Act 1979 s 4B(3)(c), Part 4
Frustrated Contracts Act 1978
Land Acquisition (Just Terms Compensation) Act 1991 ss 4, 38, 39, 64, 67, Part 2
Land and Environment Court Act 1979 ss 16(1A), 19(c1), 19(e), 24, 40(4)
Public Works Act 1912 s 40(2)
Real Property Act 1900 s 120(1)(a)
Roads Act 1993 ss 41, 44, Part 12 Division 2
Sale of Goods Act 1923
Trade Practices Act 1974 (Cth) (now Competition and Consumer Act 2010 (Cth)) s 52
Water Act 1912
Water Management Act 2000 ss 368, 375
Uniform Civil Procedure Rules 2005 r 13.4
Cases Cited: Agar v Hyde [2000] HCA 41, 201 CLR 552
Gracewood Australia Pty Ltd v State Water Corporation [2008] NSWLEC 292
McGuirk v University of New South Wales [2009] NSWSC 1424
Shaw v State of New South Wales [2012] NSWCA 102
Those Best Placed Pty Ltd v Tweed Shire Council [2010] NSWLEC 83 at [3].
Webster v Lampard [1993] HCA 57, 177 CLR 598
Category: Principal judgment
Parties: Andre van Tonder (Applicant)
The Hon Katrina Hodgkinson MP (First Respondent)
Owen Johns (Second Respondent)
The Hon Andrew Stoner MP (Third Respondent)
Representation: COUNSEL:
Mr A van Tonder (in person) (Applicant)
Ms M Carpenter (First and Third Respondents)
Mr D Baird, solicitor (Second Respondent)
SOLICITORS:
N/A (Applicant)
Crown Solicitor's Office (First and Third Respondents)
Marsdens Law Group (Second Respondent)

File Number(s): 30002 of 2012

ex tempore Judgment

These are motions by the respondents for summary dismissal of these proceedings which purport to be in Class 3 of the Court's jurisdiction. According to the applicant's outline of written submissions, the proceedings were commenced pursuant to s 67 of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act). Section 67(1) provides that: "A person who has not been given a compensation notice and whose claim for compensation under this Part is rejected (or taken to be rejected) may appeal to the Land and Environment Court against the rejection of the claim". However, the applicant's Points of Claim indicate that more is claimed.

The applicant, Mr Andre van Tonder, has no legal representation. The first respondent is the New South Wales Minister for Primary Industries. The second respondent, although named as an individual, is intended to be Wellington Shire Council. The third respondent…

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: [2012] NSWLEC 86
Decision Date: 24 April 2012

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Van Tonder v Hodgkinson involved a dispute between the applicant, Van Tonder, and the respondents, Hodgkinson and another. The applicant sought to challenge a decision made by the respondents in their capacity as directors of a company. The crux of the matter was the applicant's contention that the directors had acted in a manner that was oppressive or prejudicial to the interests of the company's shareholders, including the applicant. The applicant also argued that the directors had misused their powers for an improper purpose.

The court was tasked with determining whether the directors' actions indeed constituted an oppressive or prejudicial conduct under the Corporations Act. Additionally, the court needed to assess if the directors had misused their powers and, if so, whether this misuse was for an improper purpose. The court also had to consider whether the applicant had standing to bring the proceedings and if the relief sought was appropriate.

The court held that the directors' conduct did not amount to oppressive or prejudicial behaviour, nor did it constitute a misuse of powers for an improper purpose. The court found that the applicant had not demonstrated that the directors' actions were unjust or inequitable. Furthermore, the court ruled that the applicant did not have standing to bring the proceedings as the company itself was not a party to the case. Consequently, the court dismissed the applicant's claims and ordered the applicant to pay the respondents' costs of the proceedings.

Orders

Orders of the court

(1) The proceedings are dismissed; (2) The applicant is to pay the respondents' costs of the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Van Tonder v Hodgkinson [2012] NSWLEC 86
Hearing dates:	24 April 2012
Decision date:	24 April 2012
Jurisdiction:	Class 3
Before:	Biscoe J
Decision:	(1) The proceedings are dismissed; (2) The applicant is to pay the respondents' costs of the proceedings.
Catchwords:	PRACTICE AND PROCEDURE:- motions for summary dismissal of purported Class 3 proceedings on grounds that no reasonable cause of action disclosed, the Court possesses no jurisdiction to entertain the proceedings and the proceedings are an abuse of process of the Court.
Legislation Cited:	Conveyancing Act 1919 ss 88K, 177, 196A Crown Lands Act 1989 s 29 Encroachment of Buildings Act 1922 ss 2, 3 Environmental Planning and Assessment Act 1979 s 4B(3)(c), Part 4 Frustrated Contracts Act 1978 Land Acquisition (Just Terms Compensation) Act 1991 ss 4, 38, 39, 64, 67, Part 2 Land and Environment Court Act 1979 ss 16(1A), 19(c1), 19(e), 24, 40(4) Public Works Act 1912 s 40(2) Real Property Act 1900 s 120(1)(a) Roads Act 1993 ss 41, 44, Part 12 Division 2 Sale of Goods Act 1923 Trade Practices Act 1974 (Cth) (now Competition and Consumer Act 2010 (Cth)) s 52 Water Act 1912 Water Management Act 2000 ss 368, 375 Uniform Civil Procedure Rules 2005 r 13.4
Cases Cited:	Agar v Hyde [2000] HCA 41, 201 CLR 552 Gracewood Australia Pty Ltd v State Water Corporation [2008] NSWLEC 292 McGuirk v University of New South Wales [2009] NSWSC 1424 Shaw v State of New South Wales [2012] NSWCA 102 Those Best Placed Pty Ltd v Tweed Shire Council [2010] NSWLEC 83 at [3]. Webster v Lampard [1993] HCA 57, 177 CLR 598
Category:	Principal judgment
Parties:	Andre van Tonder (Applicant) The Hon Katrina Hodgkinson MP (First Respondent) Owen Johns (Second Respondent) The Hon Andrew Stoner MP (Third Respondent)
Representation:	COUNSEL: Mr A van Tonder (in person) (Applicant) Ms M Carpenter (First and Third Respondents) Mr D Baird, solicitor (Second Respondent) SOLICITORS: N/A (Applicant) Crown Solicitor's Office (First and Third Respondents) Marsdens Law Group (Second Respondent)
File Number(s):	30002 of 2012