Case: In re Sussex Brick Company [1904] 1 Ch 598
Outcome: referred to
Under s 234 of the Act, a person can apply for an order under s 233 if that person is a member of the company. Counsel for the defendants submit that Rosalind lacks such standing but concede that if the Court makes an order nunc pro tunc , finding her to be entitled retrospectively to be a member of the companies at a time prior to 10 October 2005, when the application was filed, the standing issue disappears. It is appropriate in this case to make an order nunc pro tunc as equity so requires. There has been unnecessary delay in registering Rosalind as a member of the companies and there is no apparent injustice to third parties if such an order were made: see, In re Sussex Brick Company [1904] 1 Ch 598. Rosalind was entitled to be recognised as a member of Rocklands Pty Ltd from at least 1 July 2005 on the payment of the price of those B Class shares and of shares in Dalness Pty Ltd from the time of the grant of probate on her father's estate on 21 June 2004. She was entitled to her A Class share in Rocklands Pty Ltd as from 7 October 1988. 55 Under s 233 of the Act, having regard to the facts and circumstances of this matter discussed above, it may be appropriate that the companies are wound up given the unlikelihood that Neil and Rosalind are capable of working together in the best interest of the companies. However, counsel do not oppose the Court deferring the question of winding up until after the parties (primarily Rosalind and Neil) can attempt to resolve outstanding issues concerning the companies between them, before the Court is required to consider the appointment of liquidators. An order under s 233 will be made, if necessary, because the failure of the other shareholders in the companies to recognise Rosalind's stake in them has denied her the opportunity to play a part in the functioning of those companies and is in that sense "oppressive". 56 Counsel for the defendants submit that the Court should invite counsel to provide, within a relatively short period, minutes of orders which the parties contend should be made to give effect to the Court's reasons. That request is a reasonable one. However, the preparation of those orders should reflect the Court's views on the plaintiff's application that: &#8226; Dalness Pty Ltd should correct its register of members to record the plaintiff as a member of the company and a beneficial holder of 22,625 ordinary shares, and the beneficial owner jointly with Neil of 1 ordinary share, and requiring Neil and Deidre to lodge a notice of correction with ASIC. &#8226; Rocklands Pty Ltd should correct its register of members to record the plaintiff as a member and the beneficial owner of 1 A Class share and the beneficial owner of 25 B Class shares, and requiring Neil and Deidre to lodge notices of correction with ASIC. &#8226; Otherwise the application under s 233 of the Corporations Act seeking winding up of the companies and other orders as set out in paragraph 5 of the application should be adjourned to a date to be fixed by the Court, in consultation with the parties. &#8226; The defendants' cross-claim should be dismissed as no such agreements as alleged were entered into by Rosalind. &#8226; As the plaintiff has wholly succeeded on the issues dealt with to date, the defendants should pay her costs of the application.