Chief Disruption Officer Pty Ltd as Trustee for the McDonald Family Trust v Michel, in the matter of Laava ID Pty Ltd (No 3) [2022] FCA 1302

CORPORATIONS – company formed by three Founders to develop and exploit a product – Shareholders’ Deed entered into between the Founders and the associated Founder Shareholders – breakdown of relationship between two of the Founders – whether the relationship between the Founders and their associated Founder Shareholders was governed by an understanding that their respective shareholdings would remain equal and which survived entry into the Shareholders’ Deed – held no such understanding established – whether there was oppression of the second plaintiff because of: (1) conduct alleged to have forced out the first plaintiff as CEO and a director of the company – held no oppression of the second plaintiff; (2) the issue and proposed issue of shares and options after the first plaintiff ceased to be involved in the company – held oppression established for some but not all of the impugned conduct

David Rayment SC and Michael Collins appeared for the First, Second, Third and Fourth Defendants.

Reasons for the decision can be found here.

Northside Veterinary Property Pty Ltd v Dalmacija Sydney Croatian Club Ltd [2022] nswsc 589

CORPORATIONS - corporate contracting - agency and authority - authority of directors to bind company to contract for the sale of land - contract executed in accordance with s 127(1)(a) of the Corporations Act 2001 (Cth) - where company claims that directors executing contract lacked actual or ostensible authority to bind company - whether plaintiff entitled to make assumptions in s 129 of the Corporations Act 2001 (Cth) - whether company precluded from asserting that assumptions are incorrect - not established that plaintiff actually knew or actually suspected that the company’s constitution had not been compiled with, or that directors were not properly preforming their duties to the company - held that company precluded by s 128(1) of the Corporations Act 2001 (Cth) from asserting non-compliance with its constitution or improper conduct on part of its directors - held that binding contract for sale came into existence

EQUITY - specific performance - contract for the sale of land - discretionary defences to specific performance - where defendant claims lapse of time and protracted negotiations should defeat plaintiff’s claim for specific performance - where defendant claims plaintiff was tricky in procuring contract - where defendant claims specific performance would occasion great hardship upon it - where defendant claims that damages would be an adequate remedy - held that no bar to decree of specific performance had been demonstrated - held appropriate to order specific performance

Robert Angyal SC appeared for the Plaintiff.

Reasons for the decision can be found here.

In the matter of Wil Brown Management Pty Ltd and Wil Brown Pty Ltd – Brownlee Enterprises Pty Ltd v Wilmen Pty Ltd [2022] NSWSC 207

PRACTICE AND PROCEDURE – application for leave to amend statement of claim – no issue of principle

CORPORATIONS – statutory derivative action – whether leave should be granted to allow applicant to bring proceedings on behalf of the two companies – where applicant is shareholder of each company – where applicant is also a beneficiary of the trust for which one of the companies acts as trustee – where applicant may also bring proceedings in capacity as beneficiary of the trust – whether probable that companies will bring proceedings themselves – whether applicant acting in good faith in seeking to bring proceedings – whether in the best interests of each company that leave be granted – whether proposed proceedings involve a serious question to be tried – where oppression under the Corporations Act 2001 (Cth), s 232 pleaded but means of redress under s 233 may not be available as assets of one company held on trust

David Rayment appeared for the Plaintiffs.

Reasons for the decision can be found here.

Wang v Cai [2021] NSWSC 1162

CIVIL PROCEDURE — Discovery — Practice Note SC Eq 11.

CIVIL PROCEDURE — Discovery — Whether necessary for resolution of real issues in dispute — Preliminary discovery.

CIVIL PROCEDURE — Interrogatories — Application for — Necessity.

CORPORATIONS — Management and administration — Application to inspect books.

EQUITY — Trusts and trustees — Beneficiaries — Access to trust documents — Where claimed by reference to general administration suit — Whether trustee obliged to provide information or an account of trust dealings.

Jennifer Mee represented the second and fifth defendants.

Reasons for this decision can be found here.

In the matter of Matrix Global Investment Group Sydney Pty Ltd (ACN 614 718 399) [2021] NSWSC 80

CORPORATIONS – winding up – application by minority shareholders to wind up a company under s 461(1)(k) of the Corporations Act 2001 (Cth) – majority shareholder caused whole of company’s funds to be transferred to accounts controlled by him – non-compliance with subsequent order requiring company’s funds to be paid into court – no issue of principle

Jennifer Mee represented the Applicants.

Reasons for the decision can be found here.

Mudgee Dolomite & Lime Ltd v Robert Francis Murdoch; In the matter of Mudgee Dolomite & Lime Pty Ltd [2020] NSWSC 1510

CORPORATIONS — Directors and officers — Fiduciary duties — Conflict of duty and interest — Conflict of duty and duty — Diversion of corporate opportunity— Whether corporate opportunity within scope of company’s activities — Where other companies associated with directors took up profitable work — Where diversion occurred after shareholders intended to split up company — Split up not implemented at time of diversion — Directors’ duties where intention or understanding to split up company in future but no present implementation.

CORPORATIONS — Directors and officers — Fiduciary duties — Fully informed consent — Whether sufficient disclosure to constitute fully informed consent.

CORPORATIONS — Directors and officers — Liability for breach of directors’ duties — Knowing involvement — Where companies associated with directors were alter egos of the directors.

CORPORATIONS — Winding up — Grounds for winding up — Just and equitable ground — Relationship between shareholders and directors irretrievably broken down — One of two directors unwilling to attend board meetings or sign financial statements — Whether less extreme remedy available — Evidence that shareholder cannot afford to buy out the other shareholder’s shares — Oppression.

EQUITY — Equitable remedies — Account of profits — Whether allowance made for Defendants’ skill and effort — Discretionary nature of remedy — Where conduct involved lack of honesty.

John Kelly SC, Howard Insall SC, and Dr. Christos Mantziaris represented Robert Murdoch interests.

Reasons for the decision can be found here.

In the Matter of Applied Masters Chemists of Australia Ltd [2020] NSWSC 291

Security interests registered by reference to grantors’ Australian Business Number rather than Australian Company Number – inadvertence – evidence of solvency of grantors – secured creditors not affected by order sought – unsecured creditors affected – whether Guardian Securities condition appropriate – principles at [16]-[20] – grantors include publicly listed company – uncertainty inherent in such a condition unhelpful and unwarranted – condition not imposed.

Tim Castle represented the Plaintiff.

Reasons for the decision can be found here.

ROBERT ALLAN JACOBS as Receiver and Manager of PLUTON RESOURCES LTD (RECEIVER AND MANAGER APPOINTED) (In Liq) v HUGHES [2018] WASC 414

Corporations - Receivers and managers - Retention of moneys by former receivers and managers - Potential liability under s 433 Corporations Act 2001 (Cth) - Application made by current receiver and manager against former receivers and managers for transfer of retention fund - Proper construction of s 433 - Equitable lien.

Tim Castle and Chris Pearce represented the Plaintiff.

Reasons for the decision can be found here.

Print Mail Logistics Limited v Warratah Investments Pty Ltd [2018] FCA 1618

CORPORATIONS – application to set aside a statutory demand or in the alternative for a permanent injunction – where creditor has refused to assign securities – whether the affidavit accompanying the statutory demand met the requirements of s 459E(3) of the Corporations Act 2001 (Cth) (Act) – whether creditor is intentionally acting to impair securities that ought to be available for a guarantor or an incoming financier upon payment of the principal debt – whether the Court should set aside the demand on the basis of s 459H(1) or s 459J(1)(b) of the Act or grant a permanent injunction – application allowed.

David Rayment represented the Plaintiff.

Reasons for the decision can be found here.

Baca v Union Standard International Group

Steven Cominos appeared for the Respondent, a margin FX issuer, in an international arbitration involving a claim brought by a former client. The Respondent was successful in upholding its decision to confiscate the claimant’s profits relying on the terms of its product disclosure statement. Those terms permitted the confiscation of profits due to the claimant having engaged in price latency arbitrage trading and its failure to disclose its use of plug-in software when executing margin FX trades on the Respondent’s platform. All the claimant’s allegations of breaches of the Corporations Act by the Respondent and that the relevant contractual terms were ‘unfair terms’ under the ASIC Act were also rejected.

The Sharemarket College Pty Ltd & 2 Ors v ASIC [2016] AATA

FINANCIAL SERVICES – application to stay decision of ASIC – decision cancelled first applicant’s financial services license – applicant also operates Registered Training Organisation licensed by ASQA - utility of granting stay - prospects of success – public interest – consequences on application for review.

FINANCIAL SERVICES – application to stay decision of ASIC – banning orders against second and third applicants who were responsible managers of financial service licensee – utility of granting stay - prospects of success – public interest – consequences on application for review.

Dominique Hogan-Doran SC and Steven Cominos appeared for the applicants.

Great Investments Ltd v Warner [2016] FCAFC 85

CORPORATIONS – power of attorney – construction of general power of attorney – whether exclusion of liability for conflict of interest or direct or personal interest authorises transfer of company assets for director’s private purposes – whether recipients can rely upon assumptions in ss 128 and 129 of the Corporations Act 2001 (Cth) 

EQUITY – unjust enrichment – constructive trust – receipt of company assets without authority – irrelevance of recipient’s knowledge to prima facie liability to make restitution

EQUITY – defence of bona fide purchase – whether defence can operate where there is no receipt by third party - meaning of “value” – degree of notice required – whether respondents are purchasers for value – whether respondents have notice

CORPORATIONS – uncommercial transactions under s 588FB of the Corporations Act 2001 (Cth) - whether transfers pursuant to power of attorney were uncommercial transactions – whether, because company had ‘no choice’, the transfers were not uncommercial transactions – whether orders would be appropriate under s 588FF of Corporations Act

Nelmeer Ashfield Pty Ltd v Farah [2016] NSWSC 279

CONTRACTS - Retail Leases Act 1994 (NSW) – nature of inconsistency with terms of head lease required by s 16(5) of Retail Leases Act.
  
CORPORATIONS – head lessor and lessee had common shareholders and directors – no sham, fraud or device alleged – terms of head lease inconsistent with 5-year sub-lease.
  
APPEAL – leave to appeal – Appeal Panel distinguished binding authority of Conoid Pty Ltd v International Theme Park Pty Ltd [2000] NSWCA 189 on erroneous basis – matter of sufficient importance to warrant a limited grant of leave.

Robert Angyal SC appeared for the successful appellant.

Caason Investments Pty Ltd v Cao [2015] FCAFC 94

Counsel | David Rayment

PRACTICE AND PROCEDURE – application for leave to appeal - application for leave to amend pleading - representative proceeding under Federal Court of Australia Act 1976 (Cth) Pt IVA – claim for compensation for loss or damage resulting from misstatement in, or omission from, disclosure document under Corporations Act 2001 (Cth) s 729 - claims of misleading or deceptive conduct - causation – market-based causation – whether primary judge erred in rejecting proposed amendments to reflect market-based causation case – whether the market-based causation case is a viable one in the context of the claim under s 729 - whether reliance is a necessary element under s 729 - leave to appeal granted – appeal allowed.

Corporations Act 2001 (Cth) ss 728, 729(1), 729(2), 1041H
Australian Securities and Investments Commission Act 2001(Cth) s 12DA 
Corporate Law Economic Reform Program Bill 1998 (Cth)
Fair Trading Act 1999 (Vic) s 9
Federal Court of Australia Act 1976 (Cth) s 31A, Pt IVA, s 37M(3)
Federal Court Rules 2011 (Cth) rr 8.21, 16.21, 16.55