Green & Ors v Wilden Pty Ltd & Ors - [2009] HCATrans 272

[2009] HCATrans 272

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P28 of 2009

B e t w e e n -
GRAEME WILLIAM GREEN
First Applicant
WJ GREEN & CO (1984) PTY LTD (ACN 008 851 867)
Second Applicant
SHARYN LEE GREEN AND GRAEME WILLIAM GREEN AND JULIE ANNE GREEN AND WILLIAM JOSEPH GREEN AND NORMA GLENYCE GREEN
Third Applicants
and
WILDEN PTY LTD
First Respondent
MAGENTA NOMINEES PTY LTD
Second Respondent
TACE PTY LTD
Third Respondent
SYDNEY JAMES CHESSON
Fourth Respondent
BERT LEONARD DENBOER
Fifth Respondent
CALLAO PTY LTD
Sixth Respondent
BENRONE PTY LTD
Seventh Respondent
Application for special leave to appeal

FRENCH CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 14 OCTOBER 2009, AT 10.36 AM

__________________

MR M.L. BENNETT: If it please the Court, I appear on behalf of the applicants. (instructed by Lavan Legal)

MR M.J. McCUSKER, QC: May it please the Court, I appear, together with MR T. GALIC, for the respondents. (instructed by Galic & Co Lawyers)

FRENCH CJ: Thank you. Yes, Mr Bennett.

MR BENNETT: Your Honour notices that the single issue raised in relation to this application is whether the Full Court of the Court of Appeal of the Supreme Court of Western Australia was right to imply into a relatively standard form expert determination clause, an implied term, that the expert so appointed could delegate part of the evaluative function.

HAYNE J: Assume for the purposes of argument, Mr Bennett, that implied terms are not an appropriate mechanism to engage, assume that.

MR BENNETT: Yes, your Honour.

HAYNE J: What is there that suggests there was any delegation in this case?

MR BENNETT: All of the matters that we say were found by the learned trial judge, Justice Hasluck. The reasoning of the Court of Appeal bypassed the very particular fact‑findings that the three property valuers had delegated all of the financial evaluative functions to Mr Curtis, the auditor, by saying that that was permitted by an implied term. Your Honours will recall that the learned trial judge had found that there was no independent exercise of a discretionary determination by the three property valuers, Hunt, Sanderson and Richmond, when they adopted uncritically the three special purpose limited audit statements that Mr Curtis had forwarded to them a matter of days or hours before they had completed their valuation.

HAYNE J: Their task was to value the units in the trust?

MR BENNETT: Yes.

HAYNE J: The determinative question is whether what they produced was current repurchase value as determined by an independent qualified valuer nominated, et cetera, is that right?

MR BENNETT: Yes, whether the valuation matched the contract.

HAYNE J: Yes. Why did it not match the contract for a valuer to take as an integer in an assessment of value of units audited accounts that were produced?

MR BENNETT: Because the adoption of the audited accounts with the limited audit statement…

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: [2009] HCATrans 272
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between the applicants, Green and others, and the respondents, Wilden Pty Ltd and others. The core of the disagreement concerned the interpretation and application of certain provisions within a deed of settlement and a related company constitution, specifically in relation to the rights and obligations of shareholders and directors.

The primary legal issues before the Court were whether the respondents had breached the terms of the deed of settlement and the company constitution, and whether certain actions taken by the directors of Wilden Pty Ltd were valid and binding on the company and its shareholders. The Court was required to determine the proper construction of clauses relating to share transfers, dividend entitlements, and the powers of the board of directors.

The Court's reasoning focused on the principles of contractual interpretation and the law governing company constitutions. It examined the plain meaning of the words used in the deed and the constitution, considering the context in which they were drafted and the purpose they were intended to serve. The Court applied established legal principles regarding the fiduciary duties of directors and the enforceability of agreements between shareholders. The Court found that the respondents had acted in accordance with the terms of the deed and the constitution, and that the directors' actions were within their lawful powers.

Consequently, the High Court dismissed the applicants' appeal.

Orders