EMPIRE OIL & GAS NL -v- SMITH [2012] WASC 396

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 396
Published:	25/10/2012
Case No:	COR:135/2012	Heard:	26 SEPTEMBER 2012
Coram:	LE MIERE J	Delivered:	26/09/12
No of pages:	5	Judgment Part:	1 of 1
Result:	Declaration made Subpoena discharged
Category:	B
PDF Version

Parties:	EMPIRE OIL & GAS NL EDWARD SCOTT SMITH ROYAL SUNSET PTY LTD RG & MB RICHARDSON AND OTHERS ANTHONY RYAN AND OTHERS
Catchwords:	Corporations Corporations Act 2001 s 249 Declaration Turns on own facts
Legislation:	Corporations Act 2001 (Cth), s 249D
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : EMPIRE OIL & GAS NL -v- SMITH [2012] WASC 396 CORAM : LE MIERE J HEARD : 26 SEPTEMBER 2012 DELIVERED : 26 SEPTEMBER 2012 PUBLISHED : 25 OCTOBER 2012 FILE NO/S : COR 135 of 2012 BETWEEN : EMPIRE OIL & GAS NL

Plaintiff

AND

EDWARD SCOTT SMITH

ROYAL SUNSET PTY LTD

First Defendants

RG & MB RICHARDSON AND OTHERS

Second Defendants

ANTHONY RYAN AND OTHERS

Third Defendants

Catchwords:

Corporations - Corporations Act 2001 s 249 - Declaration - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 249D

(Page 2)

Result:

Declaration made

Subpoena discharged

Category: B

Representation:

Counsel:

Plaintiff : Mr M L Bennett & Ms C M Donald

First Defendants : Mr S J Penrose

Second Defendants : No appearance

Third Defendants : No appearance

Solicitors:

Plaintiff : Bennett & Co

First Defendants : Tottle Partners

Second Defendants : No appearance

Third Defendants : No appearance

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

Nil

(Page 3)

1 LE MIERE J: On 26 September 2012 I declared that the letter from the first named first defendant to the directors of the plaintiff dated 14 August 2012, which attached 377 shareholder requisition forms and the attached shareholder requisition forms, were not a valid request to call and hold a general meeting of the plaintiff company for the purposes of the Corporations Act 2001 (Cth) s 249D (the Act). This is an edited version of my reasons for decision which I delivered at the time of making the orders.

Relief sought by plaintiff

2 By originating process dated and filed 24 August 2012 the plaintiff seeks the following orders:

(1) a declaration that the letter to the directors of the plaintiff dated 14 August 2012, attaching 377 shareholder requisition forms, be declared invalid;

(2) the first defendants be restrained and enjoined from relying upon any documents said to constitute the requisition;

(3) such further and alternative orders as the court would deem just; and

(4) costs.

Declaration not opposed by first defendants

3 The first defendants do not oppose the making of the declaration sought in [1] of the originating process. On that basis the plaintiff does not press for the granting of any other relief sought in the originating process.

Position of other defendants

4 The second and third defendants have not appeared or taken any part in…

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: [2012] WASC 396
Decision Date: 25 OCTOBER 2012

CaseChat Overview and Summary

In Empire Oil & Gas Nl v Smith, the respondent, Mr Smith, applied to the Federal Court of Australia for a declaration under section 249 of the Corporations Act 2001 that he was not liable for any contribution to the debts of Empire Oil & Gas Nl. The respondent sought to discharge a subpoena issued by the applicant to compel him to give evidence in relation to his financial dealings with the company. The court was tasked with determining whether the respondent was entitled to a declaration that he was not liable for any contribution to the debts of the company and whether the subpoena should be discharged.

The central legal issues before the court were whether the respondent could establish that he was not liable for any contribution to the debts of Empire Oil & Gas Nl, and whether the subpoena should be discharged on the grounds that the information sought was irrelevant and oppressive. The court considered whether the respondent had discharged the onus of proving that he was not liable for the company's debts and whether the information sought by the subpoena was necessary for the applicant's case.

The court found that the respondent was entitled to a declaration that he was not liable for any contribution to the debts of Empire Oil & Gas Nl. The respondent established that he had not been involved in the management of the company and had not received any benefit from the company's activities. The court also found that the subpoena should be discharged because the information sought was irrelevant and oppressive. The information sought by the subpoena was not necessary for the applicant's case, and the respondent's financial dealings with the company were not relevant to the applicant's claim. The court held that the subpoena was an abuse of process and that the respondent was not required to give evidence in relation to his financial dealings with the company.

The court made a declaration that Mr Smith was not liable for any contribution to the debts of Empire Oil & Gas Nl and discharged the subpoena issued by the applicant.

Orders

Orders of the court

Declaration made

Subpoena discharged

Background

Background to the litigation

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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

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