FEDERAL COURT OF AUSTRALIA

Winspear v Mackinnon [2008] FCA 456

ROSALIND WINSPEAR v NEIL GIBLIN MACKINNON, DEIDRE MACKINNON, ROCKLANDS PTY LTD (ACN 009 501 919) AND DALNESS PTY LTD (ACN 009 484 020)

TAD 40 OF 2005

MARSHALL J

7 APRIL 2008

HOBART

THE COURT ORDERS THAT:

1.                  The interlocutory application made by Mr Donald Michael Mackinnon on 25 March 2008 is dismissed.

2.                  Mr Donald Michael Mackinnon pay the plaintiff’s costs of the interlocutory application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     Mr Donald Michael Mackinnon seeks to invoke O 6 r 8(1) of the Federal Court Rules. That sub-rule provides:

Where a person who is not a party:

(a)               ought to have been joined as a party; or

(b)               is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon;

the Court may order that the person be added as a party and make orders for the further conduct of the proceeding.

2                     Mr Mackinnon’s application is made very late in the course of this matter. The major task of the Court is complete. It has acceded to an application by the plaintiff to rectify the share registers of the third and fourth defendants to reflect the plaintiff’s correct shareholdings in those companies. The plaintiff purchased her shares from a trust established for the benefit of Mr Mackinnon and also for a large number of other family members, but which appears to have been used primarily for his benefit.

3                     Mr Mackinnon applies for party status because he contends that the plaintiff and the trustees of the trust treated him unfairly. He complains that the plaintiff did not pay the trust for the purchase of shares in the third and fourth defendants until 2005 and that she did not pay the full amount of interest owing. He acknowledges that the trustees waived the payment of interest but says that they did so without his consent. Mr Mackinnon also desires to have a say in the future of the properties owned by the defendant companies.

4                     There is no reason why Mr Mackinnon should have been joined as a party at the outset of the proceeding. No orders were sought against him. No obvious interest of his was affected. At [51] of the reasons for judgment in the substantive judgment in the proceeding, the issue of whether notice should have been given to Mr Mackinnon of the existence of the matter was specifically dealt with in the negative; see Winspear v Mackinnon [2007] FCA 2077. Nothing has been put before the Court today to support the position that Mr Mackinnon was a person who ought to have been joined.

5                     I also do not consider that his joinder is now necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon. The only matter left for the Court to determine in the proceeding is whether the third and fourth defendants should be wound up. The winding up of the companies would not affect any claim Mr Mackinnon may have against the trustees of the trust or against the plaintiff for a monetary amount equivalent to his asserted equitable interest in her share of the proceeds of the companies. These matters may be addressed in a separate proceeding focussed on those issues or potentially by the liquidator in the event of a winding up of the companies.

6                     At this late stage of the matter, with only the winding up issue to be considered, and given the delay in the making of the current application, the Court should not, in any event, exercise its discretion to allow Mr Mackinnon’s joinder. I am also disinclined to allow joinder in the absence of the identification of any position that Mr Mackinnon now has on what order should be made on the remaining issues before the Court. That is, whether or not the winding up of the companies is desirable is not a topic on which Mr Mackinnon is now able to advance any position. Paradoxically that is all the Court has left to deal with in this matter.

Associate:

Dated:         7 April 2008