Dufficy Progeny Pty Ltd v Manhire

DISTRICT COURT OF QUEENSLAND

CITATION:

Dufficy Progeny Pty Ltd v Manhire [2021] QDC 232

PARTIES:

DUFFICY PROGENY PTY LTD (ACN 104 149 260) AS TRUSTEE FOR THE DUFFICY FAMILY TRUST

(plaintiff/applicant)

v

TROY JOHN MANHIRE

(defendant/respondent)

FILE NO:

172/21

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

28 June 2021

JUDGE:

Richards DCJ

ORDER:

1. Pursuant to r 292(2) of the Uniform Civil Procedure Rules 1999 (Qld) summary judgment be entered for the plaintiff on paragraphs 1 to 3 of the plaintiff’s claim, filed, 21 January 2021;

2.   The defendant specifically perform his obligations under clause 19.5 of the Agreement signed by the parties on or about 11 September 2013 by:

a.   Completing and executing a share transfer form in respect of the plaintiff’s shares in EM Legal Services Pty Ltd, ACN 158 496 854;

b.   Providing the plaintiff with a bank cheque or other immediately available funds equal to $150,000 in exchange for the shares.

3. Pursuant to s 58 of the Civil Proceedings Act 2011 (Qld) the defendant pay interest to the plaintiff on the sum of $150,000 from 30 December 2020 until the date of judgment at the rate prescribed by Practice Direction 6 of 2013;

4.   The defendant pay the costs of the proceeding including this application.

CATCHWORDS:

SUMMARY JUDGMENT – CONTRACTS – CONTRACTUAL PRINCIPLES – EXERCISE OF OPTION – EFFECT OF EXERCISE AND RELATED MATTERS – where parties entered into a Shareholders’ Agreement – where, in breach of a put option, the plaintiff obtained summary judgment against a party to the Agreement requiring the party to purchase the plaintiff’s shares – where that party failed to comply with the judgment – where that party became a bankrupt – where the plaintiff now seeks summary judgment against the current defendant – where the defendant submits the plaintiff already exercised its singular right as to who it required to purchase the shares – where the defendant contends the plaintiff cannot exercise the put option against the defendant in the circumstances – whether the plaintiff can exercise its right to purchase the shares against the defendant

LEGISLATION:

Civil Proceedings Act 2011(Qld) s 58

Uniform Civil Procedure Rules 1999 (Qld) r 292(2)

CASES:

Avis & Anor v Mark Bain Constructions Pty Ltd [2011] QSC 80

Peterson v Maloney [1951] 84 CLR 91

COUNSEL:

J P Hastie for the Applicant/Plaintiff

P W Hackett for the Respondent/Defendant

SOLICITORS:

McPherson Kelley Pty Ltd for the Applicant/Plaintiff

Chancery Legal for the Respondent/Defendant

Introduction

1. On 11 September 2013 the plaintiff entered into a Shareholders’ Agreement (‘Agreement’) concerning EM Legal Services Pty Ltd (EMLS).  The Agreement was between the plaintiff, EM Legal Services, Troy John Manhire and David Allen Evans.  Clause 19 of the Agreement contained a put option.  It stated in part:

   “19.        PUT OPTION

   19.1 The Company and the Covenantors irrevocably grant Dufficy an option to require either of the Covenantors or the Company (or its nominee) to purchase Dufficy’s…