Empire Oil & Gas Nl v Smith
[2012] WASC 396
•25 OCTOBER 2012
EMPIRE OIL & GAS NL -v- SMITH [2012] WASC 396
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 396 | |
| 25/10/2012 | |||
| Case No: | COR:135/2012 | 26 SEPTEMBER 2012 | |
| Coram: | LE MIERE J | 26/09/12 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Declaration made Subpoena discharged | ||
| 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
- 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 these proceedings, except for Mr John Campbell. Mr Campbell has stated to the court his concern about, and criticism of, the actions of the plaintiff company and its directors, which he characterised as being intimidating, and was critical of the purpose of the directors in bringing these proceedings.
5 Counsel for the plaintiff company rejects those contentions and has made submissions about the content and effect of the letter sent by the company to its shareholders on 22 August 2012 which essentially gave
(Page 4)
- rise to Mr Campbell's criticisms and concerns. It is not necessary for me to consider those matters further in the course of these proceedings and I make no further comment upon them.
Requisition is invalid
6 The plaintiff relies upon the affidavits of Nicole Emma Batalan sworn 27 August 2012 and John Lloyd Craig Marshall sworn 27 August 2012, and I take those affidavits as read. The plaintiff says that the shareholder requisition forms are invalid on a number of grounds. I find it only necessary to consider the second ground which is based on s 249 of the Act.
7 The requisition or purported requisition consisted of a letter and attached forms, each of which purported to be a form of requisition. I find that many of the requisition forms had been altered by Mr Smith, or by persons acting on his behalf, after they had been completed by the shareholder.
8 Furthermore, the forms were given by the relevant shareholder to Mr Smith not for the purpose of Mr Smith delivering them to the company but on the basis that Mr Smith might decide whether to deliver them as part of a requisition or not. Furthermore, the forms contemplated being completed to specify the shareholders who are requisitioning a meeting but were not so completed.
9 In all of the circumstances, I find that the letter of 14 August 2012 and the attached shareholder requisition forms were not a valid request for the purposes of s 249D of the Act. Accordingly, I will make the declaration sought in the originating process.
Costs
10 As to costs it is agreed between the plaintiff and the first defendants that there should be no order as to costs. None of the second or third defendants have entered an appearance or appeared by counsel; they have not incurred legal costs in the course of the proceedings and they have made no submissions contrary to the orders agreed between the plaintiff and the first defendants. Accordingly, it is appropriate and I will order that there be no order as to costs.
(Page 5)
Subpoena
11 The first defendants caused a subpoena to be issued to the plaintiff returnable today. In all of the circumstances and by the consent of the parties I order that that subpoena be discharged.
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