Culhaci v Telco Australia Ltd

FEDERAL COURT OF AUSTRALIA

Culhaci v Telco Australia Ltd [2002] FCA 42

DANIEL CULHACI & ANOR v TELCO AUSTRALIA LTD ACN 075 419 715

N 3001 OF 2002

EMMETT J
10 JANUARY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 3001 OF 2002

BETWEEN:

DANIEL CULHACI
FIRST APPLICANT

WEALTHWISE PROPERTIES PTY LTD
SECOND APPLICANT

AND:

TELCO AUSTRALIA LIMITED ACN 075 419 715
FIRST RESPONDENT

SIEGFRIED KONIG
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

10 JANUARY 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   Leave be granted to amend the application by joining Wealthwise Properties Pty Ltd as an applicant.

2.   The application be dismissed.

3.   The applicants to pay the respondents costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 3001 OF 2002

BETWEEN:

DANIEL CULHACI
FIRST APPLICANT

WEALTHWISE PROPERTIES PTY LTD
SECOND APPLICANT

AND:

TELCO AUSTRALIA LIMITED ACN 075 419 715
FIRST RESPONDENT

SIEGFRIED KONIG
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	10 JANUARY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicants seek relief under ss 1324 and 233 of the Corporations Act 2001 (“the Act”), in relation to a proposed extraordinary general meeting of Telco Australia Limited (“the Company”) to be held tomorrow. The meeting was convened pursuant to a requisition under s 249D of the Act. Some questions have arisen concerning the identity of the requisitioner. Doubts on those matters found their way into the constitution of the proceeding. The proceeding, when originally commenced, was commenced in the name of Daniel Culhaci as applicant. Pursuant to leave that I gave earlier today, Wealthwise Properties Pty Limited (“Wealthwise”) has been joined as an applicant.

2. The requisition was signed by Mr Culhaci, although it may be that it can be construed as having been signed on behalf of Wealthwise.  Attached to the requisition was a document purporting to request that a copy of a further letter (“the Proposed Letter”) be included with documentation to be sent to all shareholders.  That document was signed by Mr Culhaci as Managing Director of Wealthwise.  The significance of those matters will become apparent in due course.

3. The applicants seek to restrain the holding of the meeting on four bases. The first is that the date of the meeting is inconvenient. The second is that the Company failed to comply with its obligations under s 249P(6) to distribute a copy of the Proposed Letter to the members. Third, it is alleged that a director of the Company has made defamatory remarks about Mr Culhaci. Finally it is alleged that the Company and its directors have engaged in misleading conduct in failing to correct a misleading impression said to have been created by an announcement made to Australian Stock Exchange Limited (“ASX”) on 20 December 2001.

4. It is common ground that Wealthwise is a shareholder of the Company and therefore has standing to bring…