Bisan Ltd v Cellante - [2002] VSC 504

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7431 of 2002

BISAN LTD	Plaintiff
v
MASSIMO LIVIO CELLANTE & Ors	Defendants

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JUDGE:	DODDS-STREETON J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 November 2002
DATE OF JUDGMENT:	21 November 2002
CASE MAY BE CITED AS:	Bisan Ltd v Cellante & Ors
MEDIUM NEUTRAL CITATION:	[2002] VSC 504

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G. Bloch	HS Wise Gershov & Co
For the Defendants	Mr I. Jones	Tress Cocks Maddox

HER HONOUR:

ORDERS SOUGHT

In this proceeding, the plaintiff, by summons filed 8 November 2002, seeks, inter alia, an order that the defendants be restrained from holding a general meeting of its members called pursuant to s.249F of the Corporations Act (“the Act”) and scheduled to be held on 27 November 2002.

THE PARTIES

The plaintiff is Bisan Ltd (“Bisan”), a public company listed on the Australian Stock Exchange. The defendants are Massimo Livio Cellante, Ramon Jiminez, Licia Nunzia Buccheri, Karmala Pty Ltd and Googley Pty Ltd.

BACKGROUND

In this proceeding, on 10 October 2002 I made an order restraining the holding of a general meeting of Bisan called pursuant to s.249F of the Act on the grounds that there were serious questions to be tried as to whether: (a) the statutory minimum percentage of voting power required under s.249F(1) was satisfied and: (b) whether the proxy appointment forms supplied with the notice of the proposed meeting failed to comply with ss.250B and 250BA of the Act in that they specified return of the forms to an entity other than the company. I took the view that the balance of convenience favoured the injoining of the meeting.

On 24 October 2002, Bisan gave a Notice of Annual General Meeting to be held at 3.00 p.m. on 28 November 2002 at the CMA Center, Level 20, 500 Collins Street, Melbourne. The Notice, dated 24 October 2002, lists two agenda items, namely, (1) that the company receive and consider the financial statements and the directors’ and auditors’ reports for the year ended 30 June 2002 and (2) that Mr Stephen Shnider, who retires by rotation, being eligible, offers himself for re‑election.

The Notice of Annual General Meeting was accompanied by a proxy appointment form with a blank space for the insertion of a proxy of the member’s choice. The form provides that, failing such a nominated person, the Chairman of the meeting will be the proxy.

A Notice of General Meeting of the members of Bisan dated 25 October 2002 signed by Mr Cellante, as the attorney of four corporate shareholders, Googley Pty Ltd, Larmala Pty Ltd, Wyanda Nominees Pty Ltd and Genesis Homes Pty Ltd, gave notice of a general meeting of Bisan called pursuant to s.249F of the Act. The meeting is scheduled to be held at 5.00 p.m. on 27 November 2002 at the RACV Club, 123 Queen Street, Melbourne.

Googley Pty Ltd, Karmala Pty Ltd, Wyanda Nominees Pty Ltd and…

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 Bisan Ltd v Cellante

Details

AGLC: Bisan Ltd v Cellante [2002] VSC 504
Case: [2002] VSC 504
Decision Date: 21 November 2002

CaseChat Overview and Summary

The Supreme Court of Victoria was asked to decide whether a general meeting called by shareholders of Bisan Ltd should be stopped from happening. The meeting was supposed to happen the day before the company’s annual general meeting, and it was called under a special law provision that allows shareholders to call a meeting if they own a certain percentage of the company’s shares. The company, Bisan Ltd, argued that the meeting should be stopped because there were problems with the way the meeting was called and the way the shareholders wanted to remove the current directors. The shareholders who called the meeting said that there were no problems and the meeting should happen as planned.

The court looked at several issues, including whether the company was given enough notice that the shareholders wanted to remove the directors, whether the people nominated to be new directors had properly agreed to take the job, and whether the way the meeting was called followed the law. The court also considered whether having two meetings so close together was reasonable.

The court decided that the company was not given enough notice about the removal of directors, but this did not stop the meeting from happening because the company’s rules did not require that notice. The court also found that the new directors-to-be had properly agreed to take the job, and the way the meeting was called followed the law well enough. Finally, the court ruled that having two meetings so close together was not reasonable and ordered that the special meeting be moved to the day after the annual general meeting, at the same place.

The final order of the court was that the special meeting called by the shareholders should be postponed to the day after the annual general meeting, at the same location, to avoid having two meetings too close together, which the court found to be unreasonable.

Orders