Arogen Pty Ltd v O'Meley - [2013] NSWSC 1197

Supreme Court

New South Wales

Medium Neutral Citation: Arogen Pty Ltd & Ors v O'Meley & Anor [2013] NSWSC 1197
Hearing dates: 30 and 31 July 2013; 1 and 2 August 2013
Decision date: 30 August 2013
Jurisdiction: Equity Division
Before: Young AJ
Decision:
1. Declaration that plaintiff owns shares;
2. Order that 1st & 2nd defendants give equitable compensation for their breaches of fiduciary duties.

Catchwords: EQUITY - Plaintiff sues for declarations that she alleged trust- deeds produced in which the legal holder of shares says that she holds them on trust- original deeds not produced- evidence shows they are forgeries- claim of trust dismissed.
Legislation Cited: Conveyancing Act 1919
Cases Cited: Hyhonie Holdings Pty Ltd v Leroy [2004] NSWCA 72
Midland Bank PLC v Wyatt [1995] 1 Fam LR 697 (Eng.)
Official Assignee in Bankruptcy v Wilson [2007] NZCA 122
Texts Cited: Young, Croft, Smith, On Equity (2009) Law Book Co. at 6.340.
Category: Principal judgment
Parties:
Arogen Pty Ltd
O'Meley Investments Pty Ltd
O'Meley & Partners Pty Ltd
Roslyn Anne O'Meley (Plaintiffs)
Anthony James O'Meley,
Ellie Frances O'Meley,
Commercial Mortgage Trade Pty Ltd (Defendants)
Representation: Counsel:
MK Condon SC/S Clemmett (Plaintiffs)
B Levet (1st & 2nd Defendants)
Solicitors:
Sparke Helmore Lawyers (Plaintiffs)
Clamenz Evans Ellis Lawyers (1st & 2nd Defendants)
3rd defendant submitting

File Number(s): 2013/25117
Publication restriction: Nil

Judgment

Essentially this is a dispute within the O'Meley family as to who owns three proprietary companies. There has been a falling out between some of the principal members of the family and this means that whatever the result of the case, some members of the family will find that their hard work over many years has gone to the benefit of the other members of the family. Unfortunately in this type of dispute there is no room for discretionary orders; everything must be done according to law.

The dramatis personae can be briefly summarised as follows. I will without meaning any disrespect use first names only as the surname in each case is O'Meley, unless I have indicated a different surname.

The first three plaintiffs are companies owned by the family or some members of it. The fourth plaintiff, Roslyn, is the mother of Rodney, Stephen and Anthony, sometimes called Tony. Roslyn is married to Trevor. Ellie is Anthony's current wife. Kane is Anthony's son. Michelle is Roslyn's niece. Mark is a cousin. Other persons who feature in this case are Ermelinda Clark, a financial person, Annette West likewise, David Paton, a former manager, Samantha (Dever), former partner of Rodney, and Scott Puxty, a solicitor.

Prior to 2005 Rodney and Anthony were involved as principals in a construction company which got into dispute with a larger company, the result of which was their bankruptcy. Both became bankrupt on 12 December 2005, their bankruptcies came to an end on 14 March 2009.

Arogen, the first plaintiff, was incorporated on 17 August 2004. It was initially named "Pacific Administration Australia Pty Ltd". It changed its name to Arogen Pty…

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 Arogen Pty Ltd v O'Meley

Details

AGLC: Arogen Pty Ltd v O'Meley [2013] NSWSC 1197
Case: [2013] NSWSC 1197
Decision Date: 30 August 2013

CaseChat Overview and Summary

In the matter of Arogen Pty Ltd v O'Meley, the plaintiff sought declarations that certain trust deeds, which they claimed were produced by the defendant, indicated that she held shares on trust. The original deeds, however, were not produced in court. Instead, the plaintiff provided evidence that the deeds were forgeries. The case was heard in a court of equity in Australia.

The central legal issues before the court involved the validity of the trust deeds and the existence of a trust. The court had to determine whether the trust deeds were genuine and if the plaintiff held shares on trust as alleged. The court was also required to consider the implications of the evidence that the deeds were forgeries.

The court examined the evidence presented and concluded that the trust deeds were indeed forgeries. Given the absence of original deeds and the proven falsity of the documents provided, the court found that the plaintiff's claim for declarations regarding the existence of a trust could not be substantiated. Consequently, the plaintiff's claim was dismissed.

The court's final orders reflected its findings, dismissing the plaintiff's claim for declarations and affirming that the trust deeds were forgeries. The court did not grant any declarations as sought by the plaintiff and found no evidence to support the existence of a trust.

Orders