mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Gamlestaden Fastigheter AB v Baltic Partners Ltd [2007] 4 All ER 164
Outcome: cited
JA relied on the decision of the Privy Council in Gamlestaden Fastigheter AB v Baltic Partners Ltd [2007] 4 All ER 164 as authority for the proposition that "neither the occasion nor the purpose of an order under s 233 need involve continuing oppressive conduct" (at 404). However, Young CJ in Eq took the view (at 432) that "the authorities still require one to show continuing oppression at the date of hearing unless one is complaining about an act in the past of a director or other controller of the company which has a continuing effect". As the Council had attended to the substantive matters complained of by the plaintiff by the commencement of the final hearing, there is no conduct which needs to be the subject of an order or relief to operate prospectively. In any event, I do not consider that the relief sought by the plaintiff is an appropriate form of relief either in the circumstances of this case or for the purposes of satisfying s 233 of the Act. The relief sought by the plaintiff is that an independent person from one of the major four accounting firms be appointed to prepare a report to the members of the Council as to the Council's compliance with its obligations under the Memorandum of Understanding and the Information Memorandum, as to the adequacy of the Council's financial records and its solvency, and as to the extent and adequacy of the policies, mechanisms and procedures of the Council concerning corporate governance, reporting to the board and financial record-keeping, budgeting, forecasting and reporting. Further, the plaintiff seeks that the independent person provide recommendations as to what changes should be made to such policies, mechanisms and procedures. There are a number of criticisms or objections to this form of order of relief. Such relief leads nowhere. It does not resolve or remove the conduct complained of by the plaintiff or the acts upon which it relies for the purpose of complaining about the conduct of the Council's affairs. The matters upon which the independent person is required to report are not solely accounting or financial matters and extend beyond his or her probable expertise and experience. In particular, compliance with the Council's obligations under the Memorandum of Understanding and the Information Memorandum are not matters appropriate for determination by an accountant.
Case: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [1998] NSWSC 413 ; (1998) 28 ACSR 688
Outcome: cited
plaintiff may be misconceived as to whether the relief it seeks will end the conduct or oppression of which it complains. That misconception does not mean that it is seeking an improper collateral advantage in bringing the proceeding. The advantage sought by the plaintiff in the proceeding is to terminate the manner in which the Council's affairs have been conducted in a number of respects. Section 232 gives the plaintiff the opportunity to seek relief within the range of relief provided in s 233 of the Act. The appropriate relief to grant in any given case is a matter for the Court and the court must tailor that relief so as bring to an end the impugned conduct: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [1998] NSWSC 413 ; (1998) 28 ACSR 688 , 742. As I noted in par [21] above, I do not propose to make specific findings in relation to the numerous complaints made by the plaintiff. A number of the issues raised by the plaintiff were acknowledged by the Council with the addendum that they had been rectified and remedied by the time the proceeding commenced. I have referred to some of these issues in par [47] above. The power to grant relief under s 233 is very wide and the specific types of orders set out in s 233(1) are inclusive rather than exclusive. However, in considering what remedies should be made available to a party seeking relief under ss 232 and 233, it is necessary to consider the appropriateness of the remedy as at the time of the trial, and not simply at the time the application to the Court for relief was filed. Notwithstanding the width of the discretion in s 233 as to the relief which may be granted, the relief to be granted should be such as to terminate or remove the oppressive conduct or the conduct which is contrary to the interests of the members of the company. As Young J put it in Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [1998] NSWSC 413 ; (1998) 28 ACSR 688 at 742: "The flavour of the section also is that the court is only to give the remedy which removes the oppression. Note the remedy in fact given in Re H R Harmer Ltd [1959] 1 WLR 62 at 68. Thus it is not enough merely to find oppression and then proceed to find some remedy that might bring peace to the company generally. The court should only grant the remedy that removes the oppression found."
Case: Billingham; Re WM Ritchie (Aust) Pty Ltd [2007] NSWSC 325
Outcome: referred to
In Billingham; Re WM Ritchie (Aust) Pty Ltd [2007] NSWSC 325 , Barrett J made an order under s 509(6) upon an application by the liquidators of a company. His Honour observed that at [3] that the application was made in circumstances where the liquidators had completed their administration and distributed the surplus to the members. The liquidators were unaware at all material times that the creditors had instituted proceedings in the District Court of South Australia. They sought an extension of the registration of the company for a period of approximately six months and his Honour made an order in those terms. 10 Barrett J observed at [11] that a court's jurisdiction under s 509(6) cannot be exercised after the expiration of the period of three months of the lodgment of the liquidator's final return. The effect of what his Honour said at [11] is that an order under the subsection can only be made once. Accordingly, a party requesting an order will need to arrive at a period sufficient to enable the purpose for which the order is made to be achieved. 11 Here, the plaintiff seeks an extension for two years. At first sight, that seems to be a period which might be thought to be excessive, however, bearing in mind what Barrett J said about the limitation upon the power to make such an order, I have come to the view that I ought to extend the registration of the company for the full two-year period as sought by Ms Soars of counsel for the plaintiff. 12 In coming to this view, I have heard from counsel for the first and second defendants; he does not oppose the extension for that period of time. Also, I have before me a letter from ASIC which states that ASIC does not consider it necessary to make submissions in regard to the application. ASIC never consents to, nor opposes the making of orders sought pursuant to s 509(6) of the Act. Accordingly, I propose to make orders in terms of the short minutes of order provided by the plaintiff, which I will sign and date and place with the Court papers. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 27 January 2009 Counsel for the Plaintiff: J A Soars Solicitor for the Plaintiff: Robert James Lawyers Counsel for the First &amp; Second Defendants: P Doyle Gray Solicitor for the First &amp; Second Defendants: B Bilinsky &amp; Co, Solicitors Date of Hearing: 19 December 2008 Date of Judgment: 19 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1974.html
Case: Kerol Pty Ltdv Vergeld Engineering Pty Ltd (in liquidation) (unreported, Supreme Court of South Australia, Burley J, 30 April 1998)
Outcome: applied
The application is not made by the liquidator, but it is made by the plaintiff as an interested party. There is authority in a decision in Kerol Pty Ltdv Vergeld Engineering Pty Ltd (in liquidation) (unreported, Supreme Court of South Australia, Burley J, 30 April 1998) that a creditor is an interested party within the terms of s 509(6). The application in that case was quite similar to that which is made in the present proceedings. 7 In Kerol , Judge Burley said that the subsection confers a discretion on the Court to defer the dissolution of the company in two circumstances, one of which is that the continued existence of the company is necessary in order to effect some proper purpose. In that case, the proper purpose was the maintenance of proceedings in the District Court against the company by the plaintiffs. Here it is the continuation of the proceedings in this Court in which the plaintiff seeks to recover its debt in the amount, as I have said, of approximately $182,000. 8 I do not see that the present circumstances are materially different from those which existed in Kerol. Moreover, as Judge Burley said, the other circumstances in which the discretion to defer dissolution may be exercised arise where the interested party needs to make an application in relation to the administration of the liquidation. Here it may be necessary for the liquidator to seek to recover a part of the surplus from the members. That is a further reason for me to exercise my discretion to make the order.
Case: Mincom Ltd v EAM Software Finance Pty Ltd (2007) 61 ACSR 266; (2007) 25 ACLC 163; [2007] QSC 37
Outcome: cited
In purporting to create a contractual obligation by the former member in favour of a third party whether the member voted for or against the scheme or did not vote that clause appears to stretch the effect of an arrangement between a company and its members a long way. However, Lindgren J considered such a clause in Re APN News 62 ACSR 400; 25 ACLC 784; [2007] FCA 770 at [57] [63] with approval and took the same course in Re Investa Properties Ltd [2007] FCA 1104 at [21] . In Mincom Ltd v EAM Software Finance Pty Ltd (No 3) [2007] QSC 207 Fryberg J considered such a clause at [20] [29]. His Honour was persuaded to change the initial adverse reaction which he had expressed in Mincom Ltd v EAM Software Finance Pty Ltd (2007) 61 ACSR 266; (2007) 25 ACLC 163; [2007] QSC 37 at [39] . In this field, it is acknowledged that uniformity of decision is important to avoid unnecessary uncertainty. As I cannot be satisfied that the other decisions are clearly wrong, I should follow them. If, on confirmation of the scheme, a party raises the issue so that an argument with a contradictor takes place, it is possible that a different result would occur. Even if that were so, the scheme could be confirmed without the relevant clause (cf Re WebCentral Group Ltd (No 2) (2006) 58 ACSR 742; [2006] FCA 1203).
Case: Mincom Ltd v EAM Software Finance Pty Ltd (No 3) [2007] QSC 207
Outcome: considered
In purporting to create a contractual obligation by the former member in favour of a third party whether the member voted for or against the scheme or did not vote that clause appears to stretch the effect of an arrangement between a company and its members a long way. However, Lindgren J considered such a clause in Re APN News 62 ACSR 400; 25 ACLC 784; [2007] FCA 770 at [57] [63] with approval and took the same course in Re Investa Properties Ltd [2007] FCA 1104 at [21] . In Mincom Ltd v EAM Software Finance Pty Ltd (No 3) [2007] QSC 207 Fryberg J considered such a clause at [20] [29]. His Honour was persuaded to change the initial adverse reaction which he had expressed in Mincom Ltd v EAM Software Finance Pty Ltd (2007) 61 ACSR 266; (2007) 25 ACLC 163; [2007] QSC 37 at [39] . In this field, it is acknowledged that uniformity of decision is important to avoid unnecessary uncertainty. As I cannot be satisfied that the other decisions are clearly wrong, I should follow them. If, on confirmation of the scheme, a party raises the issue so that an argument with a contradictor takes place, it is possible that a different result would occur. Even if that were so, the scheme could be confirmed without the relevant clause (cf Re WebCentral Group Ltd (No 2) (2006) 58 ACSR 742; [2006] FCA 1203).
Case: Re APN News &amp; Media Ltd (2007) 62 ACSR 400; (2007) 25 ACLC 784; [2007] FCA 770 
Outcome: considered
My attention has been drawn to several aspects of the scheme which have, in the past, caused debate. I am satisfied that there is no relevant performance risk for shareholders. The break fee, no shop and no talk obligations are within reasonable bounds and in accordance with authority ( Re APN News &amp; Media Ltd (2007) 62 ACSR 400; (2007) 25 ACLC 784; [2007] FCA 770 at [25] [55]). There is no complication in relation to the scheme itself by reason of the existence of the options which are to be dealt with by another mechanism. 8 The following clause caused me some concern. "8.2 Scheme Shareholders' agreements and representations (1) The Scheme Shareholders agree to the transfer of their Orion Shares in accordance with the Scheme. (2) The Scheme Shareholders are taken to have warranted to M2 and Orion that all their Orion shares (including any rights attaching to those shares) which are transferred under the Scheme will, at the date of transfer, be fully paid and free from all mortgages, charges, liens, encumbrances and interests of third parties of any kind, whether legal or otherwise, and restrictions on transfer of any kind, and that they have full power and capacity to transfer their Orion Shares together with any rights attaching to those shares." 9 In purporting to create a contractual obligation by the former member in favour of a third party whether the member voted for or against the scheme or did not vote that clause appears to stretch the effect of an arrangement between a company and its members a long way. However, Lindgren J considered such a clause in Re APN News 62 ACSR 400; 25 ACLC 784; [2007] FCA 770 at [57] [63] with approval and took the same course in Re Investa Properties Ltd [2007] FCA 1104 at [21] . In Mincom Ltd v EAM Software Finance Pty Ltd (No 3) [2007] QSC 207 Fryberg J considered such a clause at [20] [29]. His Honour was persuaded to change the initial adverse reaction which he had expressed in Mincom Ltd v EAM Software Finance Pty Ltd (2007) 61 ACSR 266; (2007) 25 ACLC 163; [2007] QSC 37 at [39] . In this field, it is acknowledged that uniformity of decision is important to avoid unnecessary uncertainty. As I cannot be satisfied that the other decisions are clearly wrong, I should follow them. If, on confirmation of the scheme, a party raises the issue so that an argument with a contradictor takes place, it is possible that a different result would occur. Even if that were so, the scheme could be confirmed without the relevant clause (cf Re WebCentral Group Ltd (No 2) (2006) 58 ACSR 742; [2006] FCA 1203).
Case: Re Investa Properties Ltd [2007] FCA 1104
Outcome: cited
In purporting to create a contractual obligation by the former member in favour of a third party whether the member voted for or against the scheme or did not vote that clause appears to stretch the effect of an arrangement between a company and its members a long way. However, Lindgren J considered such a clause in Re APN News 62 ACSR 400; 25 ACLC 784; [2007] FCA 770 at [57] [63] with approval and took the same course in Re Investa Properties Ltd [2007] FCA 1104 at [21] . In Mincom Ltd v EAM Software Finance Pty Ltd (No 3) [2007] QSC 207 Fryberg J considered such a clause at [20] [29]. His Honour was persuaded to change the initial adverse reaction which he had expressed in Mincom Ltd v EAM Software Finance Pty Ltd (2007) 61 ACSR 266; (2007) 25 ACLC 163; [2007] QSC 37 at [39] . In this field, it is acknowledged that uniformity of decision is important to avoid unnecessary uncertainty. As I cannot be satisfied that the other decisions are clearly wrong, I should follow them. If, on confirmation of the scheme, a party raises the issue so that an argument with a contradictor takes place, it is possible that a different result would occur. Even if that were so, the scheme could be confirmed without the relevant clause (cf Re WebCentral Group Ltd (No 2) (2006) 58 ACSR 742; [2006] FCA 1203).
Case: WebCentral Group Ltd (No 2) (2006) 58 ACSR 742 [2007] FCA 1203
Outcome: cited
In purporting to create a contractual obligation by the former member in favour of a third party whether the member voted for or against the scheme or did not vote that clause appears to stretch the effect of an arrangement between a company and its members a long way. However, Lindgren J considered such a clause in Re APN News 62 ACSR 400; 25 ACLC 784; [2007] FCA 770 at [57] [63] with approval and took the same course in Re Investa Properties Ltd [2007] FCA 1104 at [21] . In Mincom Ltd v EAM Software Finance Pty Ltd (No 3) [2007] QSC 207 Fryberg J considered such a clause at [20] [29]. His Honour was persuaded to change the initial adverse reaction which he had expressed in Mincom Ltd v EAM Software Finance Pty Ltd (2007) 61 ACSR 266; (2007) 25 ACLC 163; [2007] QSC 37 at [39] . In this field, it is acknowledged that uniformity of decision is important to avoid unnecessary uncertainty. As I cannot be satisfied that the other decisions are clearly wrong, I should follow them. If, on confirmation of the scheme, a party raises the issue so that an argument with a contradictor takes place, it is possible that a different result would occur. Even if that were so, the scheme could be confirmed without the relevant clause (cf Re WebCentral Group Ltd (No 2) (2006) 58 ACSR 742; [2006] FCA 1203).
Case: Downes v Cottam, In re Beddoe [1893] 1 Ch 547
Outcome: cited
are exceptions to the rule that the company's assets should bear the costs. Broadly speaking, if the liquidator acts unreasonably, recklessly or even negligently and his conduct leads to the unnecessary incurring of costs, those costs ought to be paid by the liquidator: In re Beddoe; Downes v Cottam [1893] 1 Ch 547; Mead v Watson (2005) 23 ACLC 718. In deciding whether the liquidator is acting unreasonably it is necessary to have regard to s 545 of the Corporations Act . Subsection (1) provides that "a liquidator is not liable to incur any expense in relation to the winding up of a company unless there is sufficient available property". (There are certain exceptions in relation to lodging of documents with ASIC: see s 545(3).) The effect of the section is that, apart from lodging certain documents, a liquidator is not required to do anything if he cannot recover his expenses. It means the liquidator commits no wrong in failing to carry out any duties.
Case: Marseilles Extension Railway and Land Company, In re (1885) 30 Ch D 598
Outcome: cited
is a general rule that in a proceeding by or against a liquidator the real party to the action is the company and the company's assets are responsible for the costs: In re Marseilles Extension Railway and Land Company (1885) 30 Ch D 598. Of course if the liquidator is the plaintiff he will be ordered to pay the costs of the successful defendant but has an indemnity for those costs. If this were not the rule a liquidator would be in an impossible position. He would only bring an action if it were bound to succeed. He might not resist claims brought against the company unless they were clearly hopeless. There is also the risk that good people would be deterred from taking on the responsibility of acting as a liquidator: Re Wilson Lovatt &amp; Sons Ltd [1977] 1 All ER 274.
Case: Mead v Watson (2005) 23 ACLC 718
Outcome: cited
are exceptions to the rule that the company's assets should bear the costs. Broadly speaking, if the liquidator acts unreasonably, recklessly or even negligently and his conduct leads to the unnecessary incurring of costs, those costs ought to be paid by the liquidator: In re Beddoe; Downes v Cottam [1893] 1 Ch 547; Mead v Watson (2005) 23 ACLC 718. In deciding whether the liquidator is acting unreasonably it is necessary to have regard to s 545 of the Corporations Act . Subsection (1) provides that "a liquidator is not liable to incur any expense in relation to the winding up of a company unless there is sufficient available property". (There are certain exceptions in relation to lodging of documents with ASIC: see s 545(3).) The effect of the section is that, apart from lodging certain documents, a liquidator is not required to do anything if he cannot recover his expenses. It means the liquidator commits no wrong in failing to carry out any duties.
Case: Wilson Lovatt &amp; Sons Ltd, Re [1977] 1 All ER 274
Outcome: cited
is a general rule that in a proceeding by or against a liquidator the real party to the action is the company and the company's assets are responsible for the costs: In re Marseilles Extension Railway and Land Company (1885) 30 Ch D 598. Of course if the liquidator is the plaintiff he will be ordered to pay the costs of the successful defendant but has an indemnity for those costs. If this were not the rule a liquidator would be in an impossible position. He would only bring an action if it were bound to succeed. He might not resist claims brought against the company unless they were clearly hopeless. There is also the risk that good people would be deterred from taking on the responsibility of acting as a liquidator: Re Wilson Lovatt &amp; Sons Ltd [1977] 1 All ER 274.
Case: Ackers v Austcorp International Ltd [2009] FCA 432
Outcome: related
1 May 2009, his Honour delivered Reasons for Judgment ( Ackers v Austcorp International Ltd [2009] FCA 432) but did not make any orders giving effect to those reasons on that day. Thus, in form, Austcorp seeks leave to appeal from reasons, not orders. Ordinarily, this is a course of action which the Court will not permit (see Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 at 483 and the cases cited by Burchett J at 483; and see also Secretary, Department of Social Security v Lowe [1999] FCA 705 ; (1999) 92 FCR 26 at [16] (pp 33 34)). However, in the present case, it is not necessary for me to decide whether leave to appeal from his Honour's reasons should be granted. This is because, subsequent to 1 May 2009, his Honour made various orders on three separate occasions consequent upon the delivery of his reasons on 1 May 2009. During the course of argument before me, Austcorp made clear that it wished to challenge all of the substantive orders made by his Honour after 1 May 2009 by whatever means were considered by the Court to be appropriate. Subject to one matter to which I shall refer shortly, Counsel for the respondents to the present application did not oppose leave to appeal being granted to Austcorp nor did she oppose the making of other appropriate orders to regularise Austcorp's appeal.
Case: Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467
Outcome: followed
1 May 2009, his Honour delivered Reasons for Judgment ( Ackers v Austcorp International Ltd [2009] FCA 432) but did not make any orders giving effect to those reasons on that day. Thus, in form, Austcorp seeks leave to appeal from reasons, not orders. Ordinarily, this is a course of action which the Court will not permit (see Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 at 483 and the cases cited by Burchett J at 483; and see also Secretary, Department of Social Security v Lowe [1999] FCA 705 ; (1999) 92 FCR 26 at [16] (pp 33 34)). However, in the present case, it is not necessary for me to decide whether leave to appeal from his Honour's reasons should be granted. This is because, subsequent to 1 May 2009, his Honour made various orders on three separate occasions consequent upon the delivery of his reasons on 1 May 2009. During the course of argument before me, Austcorp made clear that it wished to challenge all of the substantive orders made by his Honour after 1 May 2009 by whatever means were considered by the Court to be appropriate. Subject to one matter to which I shall refer shortly, Counsel for the respondents to the present application did not oppose leave to appeal being granted to Austcorp nor did she oppose the making of other appropriate orders to regularise Austcorp's appeal.