EL-ANSARY & ANOR -v- EL-RAGHY & ORS [2002] WASC 51

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 51
Case No:	COR:350/1998	Heard:	10-13 SEPTEMBER, 19 SEPTEMBER 2001, 16-18 JANUARY 2002, 21-23 JANUARY 2002
Coram:	TEMPLEMAN J	Delivered:	25/03/02
No of pages:	46	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	MOHAMED EL-ANSARY BARBARA EL-ANSARY SAMI ABBAS YOUSSEF EL-RAGHY MICHAEL JOHN BRENZ KRIEWALDT EL-RAGHY KRIEWALDT PTY LTD (ACN 009 091 516) NORDANA PTY LTD (ACN 009 087 414) PHARAOH GOLD MINES NL (ACN 062 135 728) CENTAMIN NL (ACN 007 700 352)
Catchwords:	Corporations law Whether shares were issued for the sole or substantial purpose of diluting shareholding Whether conduct was oppressive or unfairly prejudicial to, or unfairly discriminatory, pursuant to s246AA of the Corporations Act 2001 (Cth) Trusts Whether shares were owned beneficially Practice and procedure trial of preliminary issue
Legislation:	Corporations Act 2001 (Cth), s 246AA, s 243A, s 243G Evidence Act 1906 (WA), s 79C
Case References:	Jenkins v Enterprise Goldmines NL (1992) 10 ACLC 136 Jones v Dunkel (1959) 101 CLR 298 Nullacourt Pty Ltd v Walker, unreported; Library No 950249A; 19 May 1995 Shamsallah Holdings Pty Ltd & Anor v CBD Refrigeration and Airconditioning Services Pty Ltd & Ors (2001) 19 ACLC 517 Harlowe's Nominees Pty Ltd v Woodside (Lakes Entrance) Oil Company NL & Anor (1968) 121 CLR 483 Howard Smith Ltd v Ampol Petroleum Ltd & ors [1974] AC 821 In the Matter of Companies (Western Australia) Code v Spargos Mining NL (1990) 3 WAR 166 John J Starr (Real Estate) Pty Ltd v Andrew Australasia (Pty Ltd) (1991) 6 ACSR 63 Kokotovich Constructions Pty Ltd v Wallington (1995) 13 ACLC 1113 Mills & Ors v Mills & Ors (1938) 60 CLR 150 New South Wales Rugby League Ltd v Wayde (1985) 1 NSWLR 86 Ngurli & Anor v McCann & Anor (1953) 90 CLR 425 Ord Forrest Pty Ltd v Federal Commissioner of Taxation (1974) 130 CLR 124 Re Bright Pine Mills Pty Ltd [1969] VR 1002 Re London School of Electronics Ltd [1986] Ch 211 Re Overton Holdings Pty Ltd (1984) 2 ACLC 777 Re Tivoli Freeholds Ltd [1972] VR 445 Shamsallah Holdings Pty Ltd v CBD Refrigeration and Airconditioning Services Pty Ltd (2001) WASC 8 Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459 Whitehouse & Anor v Carlton Hotel Pty Ltd (1987) 162 CLR 285

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : EL-ANSARY & ANOR -v- EL-RAGHY & ORS [2002] WASC 51 CORAM : TEMPLEMAN J HEARD : 10-13 SEPTEMBER, 19 SEPTEMBER 2001, 16-18 JANUARY 2002, 21-23 JANUARY 2002 DELIVERED : 25 MARCH 2002 FILE NO/S : COR 350 of 1998 BETWEEN : MOHAMED EL-ANSARY

BARBARA EL-ANSARY

Applicants

AND

SAMI ABBAS YOUSSEF EL-RAGHY

First Respondent

MICHAEL JOHN BRENZ KRIEWALDT

Second Respondent

EL-RAGHY KRIEWALDT PTY LTD (ACN 009 091 516)

Third Respondent

NORDANA PTY LTD (ACN 009 087 414)

Fourth Respondent

PHARAOH GOLD MINES NL (ACN…

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

AGLC: El-Ansary v El-Raghy [2002] WASC 51
Case: [2002] WASC 51
Decision Date

CaseChat Overview and Summary

In El-Ansary v El-Raghy, the applicants sought an order that some or all of the directors and their respective companies purchase the applicants' two shares in Pharaoh Gold Mines NL (PGM) at a fair and proper value, or that PGM purchase their shares and its capital be reduced accordingly. The applicants contended that the directors had caused PGM to issue a further 390,000 shares to companies they owned for the sole or substantial purpose of diluting the applicants' shareholding, and that this conduct was oppressive or unfairly prejudicial to them. The court held that the share issues were made for the purpose of raising funds to keep PGM's Egyptian operations running, and not for the purpose of diluting the applicants' shareholding. The court found that the applicants' shareholding was of no practical value, as PGM was worthless at the time of the share issues, and that the directors' actions were not oppressive or unfairly prejudicial to the applicants. The application was dismissed.

Orders