Dick v Alan Powell Holdings - [2008] QSC 219

SUPREME COURT OF QUEENSLAND

CITATION:

Dick v Alan Powell Holdings & Ors [2008] QSC 219

PARTIES:

WAYNE KENNETH DICK
(applicant)
v
ALAN POWELL HOLDINGS (ACN 010 732 500)
(first respondent)
and
A.L. POWELL HOLDINGS PTY LTD (ACN 073 744 411)
(second respondent)
and
TREKMERE PTY LTD (ACN 082 912 025)
(third respondent)

FILE NO:

1510/06

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

16 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

15 September 2008

JUDGE:

Daubney J

ORDER:

I will hear the parties as to the form of orders required

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – Other Matters – where respondents allege ‘gross default of court orders’ by the applicant – where application made pursuant to Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) rule 280(2) for dismissal of proceeding – whether proceeding should be dismissed

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – Summary Judgment – where applicant under principal proceeding seeks relief under Part 2F.1 of the Corporations Act 2001 (Cth) for oppression – where respondent contends that principal proceeding is devoid of utility – whether summary judgment under UCPR r 292(3) should be granted

Cooper v Hopgood & Ganim [1999] 2 Qd R 115

Dey v Victorian Railways Commissioner (1949) 78 CLR 62

Dynasty Pty Ltd v Coombs (1995) 13 ACLC 1290
ES Gordon Pty Ltd v Idameneo (No 123) Pty Ltd (1995) 15 ACSR 536
Lenijamar Pty Ltd v AGC Advanced Ltd (1990) 98 ALR 200

Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 1999 (Qld)

COUNSEL:

R A Perry SC for Wayne Kenneth Dick
J C Bell QC with D O’Sullivan for Allan Powell Holdings Pty Ltd, A.I. Powell Holdings Pty Ltd and Trekmere Pty Ltd

SOLICITORS:

Lynch Morgan Lawyers for Wayne Kenneth Dick
McCullogh Robertson for Allan Powell Holdings Pty Ltd, A.I. Powell Holdings Pty Ltd and Trekmere Pty Ltd

The applicant in the principal proceeding, Mr Dick, holds 15 per cent of the issued capital in the first respondent, Alan Powell Holdings Pty Ltd (‘APH’). The second and third respondents hold the balance of the shares – AL Powell Holdings Pty Ltd (‘ALP’), which is owned by Mr Alan Powell, holds 75 per cent, and Trekmere Pty Ltd (‘Trekmere’), which is owned by Mr Tom Smith, holds 10 per cent. APH was in the business of owning and operating car dealerships in Bundaberg. That business has ceased.

The principal proceeding brought by Mr Dick seeks relief under Part 2F.1 of the Corporations Act; i.e. these are oppression proceedings. The primary relief

Mr Dick seeks in the principal proceeding is an order pursuant to s 233 of the Corporations Act 2001 (Cth) that ALP and/or Trekmere purchase all of the shares Mr Dick holds in APH at a price determined by the Court.

The present application has been brought by APH, ALP and Trekmere, seeking an order that the principal proceeding be…

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 Dick v Alan Powell Holdings

Details

AGLC: Dick v Alan Powell Holdings [2008] QSC 219
Case: [2008] QSC 219
Decision Date: 16 September 2008

CaseChat Overview and Summary

The matter before the court involved an application by Alan Powell Holdings seeking the dismissal of proceedings brought by Dick, who was claiming relief under the Corporations Act 2001 for oppression. Alan Powell Holdings argued that the proceedings were devoid of utility and amounted to a gross default of court orders. The application was made under the Uniform Civil Procedure Rules 1999 (Qld) rule 280(2), and Alan Powell Holdings also sought summary judgment under rule 292(3) of the UCPR.

The court was required to determine whether the application for dismissal should be granted, given the respondents' allegation of gross default of court orders by the applicant. Additionally, the court had to decide if summary judgment was appropriate in light of the contention that the principal proceedings were devoid of utility.

In addressing these issues, the court considered the circumstances of the case and the conduct of the parties. It examined the allegations of gross default and whether they warranted the dismissal of the proceedings. The court also evaluated whether the principal proceedings had any utility or if they should be dismissed as a matter of law. After careful consideration, the court determined that the proceedings should not be dismissed, and summary judgment should not be granted at that stage.

The final orders made by the court were to hear the parties regarding the form of orders required. This allowed the court to gather further information and submissions from the parties before making any definitive orders. The court's decision reflected a cautious approach, ensuring that all relevant factors and legal principles were considered in the context of the Uniform Civil Procedure Rules.

Orders

Orders of the court

I will hear the parties as to the form of orders required

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.

CITATION:	Dick v Alan Powell Holdings & Ors [2008] QSC 219
PARTIES:	WAYNE KENNETH DICK (applicant) v ALAN POWELL HOLDINGS (ACN 010 732 500) (first respondent) and A.L. POWELL HOLDINGS PTY LTD (ACN 073 744 411) (second respondent) and TREKMERE PTY LTD (ACN 082 912 025) (third respondent)
FILE NO:	1510/06
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	16 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	15 September 2008
JUDGE:	Daubney J
ORDER:	I will hear the parties as to the form of orders required
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – Other Matters – where respondents allege ‘gross default of court orders’ by the applicant – where application made pursuant to Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) rule 280(2) for dismissal of proceeding – whether proceeding should be dismissed PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – Summary Judgment – where applicant under principal proceeding seeks relief under Part 2F.1 of the Corporations Act 2001 (Cth) for oppression – where respondent contends that principal proceeding is devoid of utility – whether summary judgment under UCPR r 292(3) should be granted Cooper v Hopgood & Ganim [1999] 2 Qd R 115 Dey v Victorian Railways Commissioner (1949) 78 CLR 62 Dynasty Pty Ltd v Coombs (1995) 13 ACLC 1290 ES Gordon Pty Ltd v Idameneo (No 123) Pty Ltd (1995) 15 ACSR 536 Lenijamar Pty Ltd v AGC Advanced Ltd (1990) 98 ALR 200 Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 1999 (Qld)
COUNSEL:	R A Perry SC for Wayne Kenneth Dick J C Bell QC with D O’Sullivan for Allan Powell Holdings Pty Ltd, A.I. Powell Holdings Pty Ltd and Trekmere Pty Ltd
SOLICITORS:	Lynch Morgan Lawyers for Wayne Kenneth Dick McCullogh Robertson for Allan Powell Holdings Pty Ltd, A.I. Powell Holdings Pty Ltd and Trekmere Pty Ltd