Australia, May 23 -- New South Wales Land and Environment Court issued text of the following judgement on April 23:

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

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

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

2. 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.

3. 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.

4. Mr Kennedy is a former director of Kentel. He controls some 70% of the issued capital of Kentel. That is, Kentel, under the management control of Mr Scott, sued the person who controls 70% of the shares in Kentel.

5. On about 6 November 2024, two new directors were appointed to Kentel to serve with Mr Scott.

6. While Mr Scott and Kentel had common legal representation when the proceedings were commenced, on 3 February 2025 A&O Shearman filed a Notice of Change of Solicitor on Kentel's behalf. On 27 February 2025, XD Law and Advocacy filed a Notice of Change of Solicitor on behalf of Mr Scott. The Defendants took issue with the separate representation of the Plaintiffs. It is unusual for co-plaintiffs to be separately represented.

7. On 26 March 2025, Kentel filed a Notice of Discontinuance. It gave notice details as follows:

1. The Second Plaintiff discontinues the whole of these proceedings insofar as they are brought by the Second Plaintiff.

2. The Second Plaintiff does not represent any other person.

3. Each active party consents to the discontinuance.

8. Under the heading "Notice of Consent", the notice includes a signature of the legal representative for the First to Fourth Defendants. They are not signed by the solicitor for Mr Scott, the First Plaintiff. Mr Scott did not give his consent to this notice being filed.

9. The first main issue for determination is whether the Notice of Discontinuance was filed in accordance with the Uniform Civil Procedure Rules 2005 and is effective to discontinue the proceedings in so far as they were brought by Kentel.

10. On 27 March 2025, the respective solicitors for Kentel and the Defendants signed Short Minutes of Order, which provided for the following orders by consent:

1. The proceedings be dismissed in relation to any claim for relief made by the second plaintiff.

2. The second plaintiff pay the defendants' costs of the proceedings.

11. The circumstances leading to the execution of those Short Minutes of Order are explained in a letter dated 27 March 2025 from the solicitors for Kentel, A&O Shearman. The letter notes that Kentel has received advice from Mr Barnett SC and Ms Mellos of counsel and that Kentel has formed the view that the claims it made in the proceedings do not have reasonable prospects of success. Further, the letter states that A&O Shearman has formed the view that they are no longer able to certify for the purposes of clause 4 of Schedule 2 of the Legal Profession Uniform Law Application Act 2014 (NSW) in relation to the claims.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1966048ebbff6025c0bf8b42)

Disclaimer: Curated by HT Syndication.