Yunghanns v Elfic Ltd - [1999] VSC 291

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION Do not Send for Reporting

Not Restricted

No. 5970 of 1997
(F4932)

PETER NICHOLAS YUNGHANNS & ORS	Plaintiffs
v
ELFIC LTD & ORS	Defendants

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 and 20 July 19999
DATE OF JUDGMENT:	27 July 1999
CASE MAY BE CITED AS:	Yunghanns & Ors v Elfic Ltd & Ors
MEDIA NEUTRAL CITATION:	[1999] VSC 291

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R.McK. Robson QC with Ms J.A. Dodds-Streeton	Strongman & Crouch
For the Defendants	Mr N.J. Young QC with Mr M Connock	Arthur Robinson & Hedderwicks

HIS HONOUR:

The present proceedings before the court include proceedings initiated by two summonses issued on behalf of the first, the seventh and ninth plaintiffs.

On their first summons filed on 25 June 1999 directed to the defendants and the eighth plaintiff they seek leave of the court to add as defendants Elders Finance Group Limited, John Henry York Syme and James William Maguire and also to make substantial amendments to the statement of claim.

As appears from the affidavit of the first plaintiff sworn in support of that application the first to seventh and ninth plaintiffs also proposed to discontinue their claim against the third defendant, Elders Nominees Pty Ltd and the fourth defendant, Fosters Brewing Group Limited. At all material times to these proceedings the third defendant was and is a company which is not registered. It has not taken any part in the proceedings.

The writ in these proceedings was issued in the name of nine plaintiffs on 21 June 1997. The statement of claim of those nine plaintiffs was filed on 8 September 1997. At the time of the issue of the writ and service of the statement of claim the first plaintiff was a director of each of the eight plaintiff companies. It was alleged that he was authorised to manage and to act on behalf of each of those companies. However, on or about 2 November 1998 the first plaintiff ceased to be a director of the eighth plaintiff, Schadenfreude Pty Ltd.

By the statement of claim as filed and served each of the plaintiffs sought relief against the defendants. Subsequent to the first plaintiff ceasing to be a director of the eighth plaintiff the solicitors then acting for the plaintiffs filed a notice that they had ceased to act for the eighth plaintiff. There was not filed in the proceedings and by any solicitor on behalf of the eighth plaintiff a notice of change of solicitor.

The second summons issued on behalf of the first to seventh and ninth plaintiffs was filed on 14 July 1999 and it was directed to the defendants and the eighth plaintiff. By that summons the first to seventh and ninth plaintiff sought orders that the defendants make further discovery in the proceedings. The summonses and the affidavit material in support of the same were served on the eighth plaintiff by leaving the same at…

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: [1999] VSC 291
Decision Date: 27 July 1999

CaseChat Overview and Summary

The Supreme Court of Victoria heard an application by the plaintiffs, the first to seventh and ninth plaintiffs, to amend their statement of claim and add further defendants. The defendants included Elfic Limited and Elders Nominees Pty Ltd. The eighth plaintiff, Schadenfreude Pty Ltd, was not actively participating in the proceedings and had ceased to be represented by solicitors. The plaintiffs sought to amend their statement of claim to add Elders Finance Group Limited, Syme, and Maguire as defendants, and to recast their claims against the existing defendants. They also sought to discontinue their claims against Elders Nominees Pty Ltd and Fosters Brewing Group Limited.

The court considered whether the proposed amendments were appropriate and if the additional defendants should be joined. The court noted that the principles guiding such applications were that amendments should ordinarily be allowed if any resulting injustice to the opposing party could be compensated by terms. The court examined the proposed amended statement of claim, which detailed a series of allegations involving a joint venture, breaches of fiduciary duty, and misleading conduct by the defendants. The court concluded that the claims against the proposed new defendants were directly connected to the existing claims and it was just and convenient to determine them together.

The court decided to grant leave for the plaintiffs to amend their statement of claim and add Elders Finance Group Limited, Syme, and Maguire as defendants. It also ordered that Schadenfreude Pty Ltd cease to be a plaintiff and be added as the eighth defendant. The court reserved the question of costs and directed that further orders be made in accordance with an agreement between the parties.

Orders