Alexander v Burne - [2015] NSWCA 377

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Alexander v Burne [2015] NSWCA 377
Hearing dates: 4 November 2015
Decision date: 02 December 2015
Before: Ward JA at [1]
Gleeson JA at [2]
Tobias AJA at [3]
Decision:
1 Appeal allowed.
2 Set aside the affirmative answer of Young AJA to the Separate Question.
3 Answer the Separate Question, “No”.
4 Remit the proceedings to the Equity Division of the Supreme Court of New South Wales for directions consistent with these orders.
5 The respondents to pay the appellants’ costs of the Separate Question hearing before Young AJA and of the appeal, but to have with respect to the latter, a certificate under the Suitor’s Fund Act 1951 (NSW), if otherwise qualified.

Catchwords: CORPORATIONS – meetings – resolution to approve merger – requirement that Unitholder Matters must be passed by a “Special Majority vote of the Unitholders” – Special Majority defined as a vote of two-thirds of “persons eligible to vote in respect of a resolution” – whether passing of the resolution required two-thirds of Unitholders present at meeting and entitled to vote or two-thirds of all Unitholders
Legislation Cited: Suitor’s Fund Act 1951 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases Cited: Alexander v Burne [2015] NSWSC 345
Australian Broadcasting Commission v Australasian Performing Right Association Limited [1973] HCA 36; (1973) 129 CLR 99
BB Retail Capital Pty Ltd v Alexandria Landfill Pty Ltd [2015] NSWCA 319
Cullen v Galloway Cattle Society of Australia Inc (1998) 27 ACSR 648
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640
Inquiry Relating to Elections for Offices in the United Fire Fighters Union of Australia, Victorian Branch; Re Churchill [2001] FCA 469; (2001) 109 FCR 104
Jireh International Pty Limited t/as Gloria Jeans Coffee v Western Export Services Inc [2011] NSWCA 137
Knowles v Zoological Society of London [1959] 1 WLR 823
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 89 ALJR 990
Peters v Kerle [1997] QSC 68
Category: Principal judgment
Parties: Melissa Alexander (First Appellant)
MAA (ODB) Nominees Pty Ltd (Second Appellant)
Nicholas Burne (First Respondent)
Eric Passaris (Second Respondent)
Phillip Rundell (Third Respondent)
Rana Pala (Fourth Respondent)
Robert Peck (Fifth Respondent)
Pat Donato (Sixth Respondent)
John O’Donnell (Seventh Respondent)
Paul Motta (Eight Respondent)
John Blight (Ninth Respondent)
Grant Thornton Australia Limited (Tenth Respondent)
Representation:
Counsel:
Mr M Condon SC / Mr M Cosgrove (Appellants)
Mr DFC Thomas / Ms E Bathurst (First to Ninth Respondents)
Mr CRC Newlinds SC / Mr DG Guidolin (Tenth Respondent)
Solicitors:
Somerset Ryckmans (Appellants)
Moray & Agnew Lawyers (First to Ninth Respondents)
Maddocks (Tenth Respondent)

File Number(s): 2015/129969
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2015] NSWSC 345

Date of Decision:

1 April 2015

Before:

Young AJA

File Number(s):

2013/171685

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 27…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alexander v Burne

Details

AGLC: Alexander v Burne [2015] NSWCA 377
Case: [2015] NSWCA 377
Decision Date: 02 December 2015

CaseChat Overview and Summary

In *Alexander v Burne*, the Court of Appeal of New South Wales considered a dispute concerning the validity of a resolution to approve a merger. The core of the disagreement lay in the interpretation of the voting requirements for a "Special Majority vote of the Unitholders" as stipulated in the relevant documents. The appellants challenged the decision of Young AJA, who had previously answered a separate question regarding the voting threshold.

The central legal issue before the Court of Appeal was whether the requirement for a "Special Majority vote" meant that two-thirds of the unitholders present and entitled to vote at the meeting had to approve the resolution, or whether it required two-thirds of all unitholders eligible to vote. This distinction was critical to determining whether the resolution to approve the merger had been validly passed.

The Court of Appeal reasoned that the phrase "persons eligible to vote in respect of a resolution" referred to those unitholders who were present at the meeting and entitled to vote. The court found that the lower court's interpretation, which required a two-thirds majority of all eligible unitholders, was not supported by the plain language of the provision. Consequently, the appeal was allowed, the previous affirmative answer to the separate question was set aside, and the separate question was answered in the negative. The proceedings were remitted to the Supreme Court for further directions.

Orders

Orders of the court

1 Appeal allowed.

2 Set aside the affirmative answer of Young AJA to the Separate Question.

3 Answer the Separate Question, “No”.

4 Remit the proceedings to the Equity Division of the Supreme Court of New South Wales for directions consistent with these orders.

5 The respondents to pay the appellants’ costs of the Separate Question hearing before Young AJA and of the appeal, but to have with respect to the latter, a certificate under the Suitor’s Fund Act 1951 (NSW), if otherwise qualified.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Alexander v Burne [2015] NSWCA 377
Hearing dates:	4 November 2015
Decision date:	02 December 2015
Before:	Ward JA at [1] Gleeson JA at [2] Tobias AJA at [3]
Decision:	1 Appeal allowed. 2 Set aside the affirmative answer of Young AJA to the Separate Question. 3 Answer the Separate Question, “No”. 4 Remit the proceedings to the Equity Division of the Supreme Court of New South Wales for directions consistent with these orders. 5 The respondents to pay the appellants’ costs of the Separate Question hearing before Young AJA and of the appeal, but to have with respect to the latter, a certificate under the Suitor’s Fund Act 1951 (NSW), if otherwise qualified.
Catchwords:	CORPORATIONS – meetings – resolution to approve merger – requirement that Unitholder Matters must be passed by a “Special Majority vote of the Unitholders” – Special Majority defined as a vote of two-thirds of “persons eligible to vote in respect of a resolution” – whether passing of the resolution required two-thirds of Unitholders present at meeting and entitled to vote or two-thirds of all Unitholders
Legislation Cited:	Suitor’s Fund Act 1951 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases Cited:	Alexander v Burne [2015] NSWSC 345 Australian Broadcasting Commission v Australasian Performing Right Association Limited [1973] HCA 36; (1973) 129 CLR 99 BB Retail Capital Pty Ltd v Alexandria Landfill Pty Ltd [2015] NSWCA 319 Cullen v Galloway Cattle Society of Australia Inc (1998) 27 ACSR 648 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 Inquiry Relating to Elections for Offices in the United Fire Fighters Union of Australia, Victorian Branch; Re Churchill [2001] FCA 469; (2001) 109 FCR 104 Jireh International Pty Limited t/as Gloria Jeans Coffee v Western Export Services Inc [2011] NSWCA 137 Knowles v Zoological Society of London [1959] 1 WLR 823 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 89 ALJR 990 Peters v Kerle [1997] QSC 68
Category:	Principal judgment
Parties:	Melissa Alexander (First Appellant) MAA (ODB) Nominees Pty Ltd (Second Appellant) Nicholas Burne (First Respondent) Eric Passaris (Second Respondent) Phillip Rundell (Third Respondent) Rana Pala (Fourth Respondent) Robert Peck (Fifth Respondent) Pat Donato (Sixth Respondent) John O’Donnell (Seventh Respondent) Paul Motta (Eight Respondent) John Blight (Ninth Respondent) Grant Thornton Australia Limited (Tenth Respondent)
Representation:	Counsel: Mr M Condon SC / Mr M Cosgrove (Appellants) Mr DFC Thomas / Ms E Bathurst (First to Ninth Respondents) Mr CRC Newlinds SC / Mr DG Guidolin (Tenth Respondent) Solicitors: Somerset Ryckmans (Appellants) Moray & Agnew Lawyers (First to Ninth Respondents) Maddocks (Tenth Respondent)
File Number(s):	2015/129969
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2015] NSWSC 345 Date of Decision: 1 April 2015 Before: Young AJA File Number(s): 2013/171685