COLLINS & ORS -v- ZERNIKE AUSTRALIA PTY LTD & ANOR [2006] WASC 67

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 67
Case No:	COR:308/2005	Heard:	22 MARCH 2006
Coram:	LE MIERE J	Delivered:	22/03/06
No of pages:	10	Judgment Part:	1 of 1
Result:	Application granted
Category:	B
PDF Version

Parties:	MARK PETER COLLINS ANTONIUS MARTINUS JOZEF HUISSEN ZERNIKE GROUP BV ZERNIKE AUSTRALIA PTY LTD (ACN 088 129 355) PETER HARMAN WHY
Catchwords:	Corporations law Company directors Appointment of directors Whether valid consent to appointment Whether appointment invalid by reason of failure to provide written consent Date of valid appointment
Legislation:	Corporations Act 2001 (Cth), s 201D, s 201M
Case References:	Hedges v New South Wales Harness Racing Club Ltd (1991) 5 ACSR 291 Knight v Bulic (1994) 13 ACSR 553 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : COLLINS & ORS -v- ZERNIKE AUSTRALIA PTY LTD & ANOR [2006] WASC 67 CORAM : LE MIERE J HEARD : 22 MARCH 2006 DELIVERED : 22 MARCH 2006 FILE NO/S : COR 308 of 2005 MATTER : Sections 1322, 1324, 140 and 233 of the Corporations Act 2001

Zernike Australia Pty Ltd (ACN 088 129 355)

BETWEEN : MARK PETER COLLINS

First Plaintiff

ANTONIUS MARTINUS JOZEF HUISSEN

Second Plaintiff

ZERNIKE GROUP BV

Third Plaintiff

AND

ZERNIKE AUSTRALIA PTY LTD (ACN 088 129 355)

First Defendant

PETER HARMAN WHY

Second Defendant

(Page 2)

Catchwords:

Corporations law - Company directors - Appointment of directors - Whether valid consent to appointment - Whether appointment invalid by reason of failure to provide written consent - Date of valid appointment

Legislation:

Corporations Act 2001 (Cth), s 201D, s 201M

Result:

Application granted

Category: B

Representation:

Counsel:

First Plaintiff : Mr M L Bennett & Ms J M Hill

Second Plaintiff : Mr M L Bennett & Ms J M Hill

Third Plaintiff : Mr M L Bennett & Ms J M Hill

First Defendant : Mr P C Doherty

Second Defendant : In person

Solicitors:

First Plaintiff : Deacons

Second Plaintiff : Deacons

Third Plaintiff : Deacons

First Defendant : Minter Ellison

Second Defendant : In person

Case(s) referred to in judgment(s):

Hedges v New South Wales Harness Racing Club Ltd (1991) 5 ACSR 291
Knight v Bulic (1994) 13 ACSR 553

(Page 3)

Case(s) also cited:

Nil

(Page 4)

1 LE MIERE J: In this matter the plaintiffs have applied by originating process for orders as follows:

(1) a declaration that Mark Peter Collins was appointed a director of Zernike Australia Pty Ltd on 9 May 2005, notwithstanding any failure of Zernike Australia Pty Ltd to obtain a signed consent to act as a director;

(2) a declaration that resolutions 1, 2, 3, 4 and 5 at a meeting of directors of Zernike Australia Pty Ltd on 15 December 2005 be declared passed;

(3) such further or other order as to this honourable Court seems just.

The Evidence

2 On the hearing of this matter, the plaintiffs…

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.

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Details

Case: [2006] WASC 67
Decision Date

CaseChat Overview and Summary

In the case of Collins v Zernike Australia Pty Ltd, the plaintiffs sought declarations that Mark Peter Collins was appointed a director of Zernike Australia Pty Ltd on 9 May 2005, notwithstanding any failure to obtain a signed consent to act as a director, and that resolutions 1, 2, 3, 4 and 5 at a meeting of directors on 15 December 2005 were passed. The key issues for the court to decide were whether a written consent was necessary for Collins' appointment to be valid and, if not, the date on which Collins' appointment took effect.

The court found that the requirement of a signed consent under s 201D(1) of the Corporations Act 2001 does not render the appointment of a director invalid if not complied with. The court held that Collins' appointment was valid upon his consent to act as a director, which occurred at the meeting on 31 March 2005. The court further found that Collins' appointment as a director was effective as of 15 December 2005, when he signed the consent to act as a director.

The court concluded that Collins was entitled to vote at the meeting on 15 December 2005 and that the resolutions were passed at that meeting. The court granted the declarations sought by the plaintiffs and found that Zernike Australia Pty Ltd had wrongly disregarded Collins' vote and declared that the motions were lost.

Orders