Hassall v Johnden Engineering Pty Ltd - [2001] QSC 211

SUPREME COURT OF QUEENSLAND

CITATION: Hassall & Ors v Johnden Engineering Pty Ltd & Anor [2001] QSC 211
Hassall & Ors v Speedy Gantry Hire Pty Ltd & Anor [2001] QSC 212

PARTIES: GAVIN ALISTER HASSALL, FIONA MARY HASSALL and GAINGUARD PTY LTD
(applicants)
v
JOHNDEN ENGINEERING PTY LTD and
VACENTIA PTY LTD
(respondents)

FILE NOS: S7533 of 1998

COUNSEL: DA Skennar for applicant
R Derrington for second respondent

SOLICITORS: Davidson & Sullivan for applicant
Tucker & Cowan for second respondent

PARTIES: GAVIN ALISTER HASSALL, FIONA MARY HASSALL and GAINGUARD PTY LTD
(applicants)
v
SPEEDY GANTRY HIRE PTY LTD and VACENTIA PTY LTD
(respondents)

FILE NOS: S7534 of 1998

COUNSEL: DA Skennar for applicant
J K Bond SC, with him D A Kelly for first respondent
R Derrington for second respondent

SOLICITORS: Davidson & Sullivan for applicant
James Conomos Lawyers for first respondent
Tucker & Cowan for second respondent

DIVISION: Trial Division

DELIVERED ON: 20 June 2001

DELIVERED AT: Brisbane

HEARING DATE: 8 June 2001

JUDGE: Mackenzie J

ORDER: 1. The applicants have leave to amend the applications in each case in the manner set out in the Draft Further Originating Application initialled by me and placed with the papers and the Draft Fourth Amended Points of Claim exhibited to the affidavit of Lionel James Davidson filed 1 June 2001.
2. That application No 7533 of 1998 and application No 7534 of 1998 be consolidated.
3. That costs of the application be costs in the cause.

CATCHWORDS:
CORPORATIONS – CONSTITUTION & LEGAL CAPACITY – INTERNAL DISPUTES – WHAT CONSTITUTES OPPRESSIVE CONDUCT – an application to further amend the originating application and points of claim in oppression proceedings under s 233 of Corporations Law – whether to consolidate the two related proceedings – whether the delay in hearing present application has been prejudicial to respondent – whether r 380 Uniform Civil Procedure Rules has been satisfied – whether oppressive conduct – whether a subjective intention not to oppress may defeat a claim of oppression – whether in determining oppressive conduct a strictly objective element is required.

Corporations Law s233

Uniform Civil Procedure Rules (UCPR) r 380

Coombs v Dynasty Pty Ltd (1994) 14 ACSR 60, considered
Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692, considered
Wayde v NSW Rugby League Ltd (1985) 180 CLR 459, considered

MACKENZIE J: This is an application to further amend the originating application and points of claim in oppression proceedings under s 233 of the Corporations Law. There are currently two related proceedings, one alleging oppression in the conduct of the affairs of Johnden Engineering Pty Ltd and the other alleging oppression in the conduct of the affairs of Speedy Gantry Hire Pty Ltd.

The applicants Gavin Alister Hassall, Fiona Mary Hassall and Gainguard Pty Ltd are minority shareholders in each company. The majority shareholder is Vacentia Pty Ltd and its conduct is said to constitute the oppression complained of. Vacentia is controlled by Mr Foy and Mr Montgomery. They…

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.

Continue reading Hassall v Johnden Engineering Pty Ltd

Details

AGLC: Hassall v Johnden Engineering Pty Ltd [2001] QSC 212
Case: [2001] QSC 211
Decision Date: 20 June 2001

CaseChat Overview and Summary

The case of Hassall v Johnden Engineering Pty Ltd involved the applicants seeking leave to amend their originating application and points of claim in oppression proceedings. The matter was heard in the Supreme Court of New South Wales. The applicants sought leave to amend their applications and points of claim to include additional claims for relief in the context of alleged oppressive conduct by the respondents. The legal issues before the court included whether the delay in hearing the application had been prejudicial to the respondents, whether the requirements of rule 380 of the Uniform Civil Procedure Rules were satisfied, and whether the applicants' claims of oppressive conduct were valid.

The court considered the legal principles surrounding oppressive conduct and the discretion of the court in allowing amendments to pleadings. The court found that the applicants' delay in making the application was not prejudicial to the respondents, and that the requirements of rule 380 were satisfied. The court also determined that the existence of a subjective intention not to oppress did not necessarily defeat a claim of oppression, and that a strictly objective element was required in determining whether oppressive conduct had occurred. Based on these findings, the court granted the applicants leave to amend their applications and points of claim, and ordered that the two related proceedings be consolidated.

The final orders of the court included granting the applicants leave to amend their applications and points of claim, consolidating the two related proceedings, and ordering that the costs of the application be costs in the cause. The court's decision provides guidance on the legal principles surrounding oppressive conduct and the discretion of the court in allowing amendments to pleadings in oppression proceedings.

Orders

Orders of the court

1. The applicants have leave to amend the applications in each case in the manner set out in the Draft Further Originating Application initialled by me and placed with the papers and the Draft Fourth Amended Points of Claim exhibited to the affidavit of Lionel James Davidson filed 1 June 2001.

2. That application No 7533 of 1998 and application No 7534 of 1998 be consolidated.

3. That costs of the application be costs in the cause.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Hassall & Ors v Johnden Engineering Pty Ltd & Anor [2001] QSC 211 Hassall & Ors v Speedy Gantry Hire Pty Ltd & Anor [2001] QSC 212
PARTIES:	GAVIN ALISTER HASSALL, FIONA MARY HASSALL and GAINGUARD PTY LTD (applicants) v JOHNDEN ENGINEERING PTY LTD and VACENTIA PTY LTD (respondents)
FILE NOS:	S7533 of 1998
COUNSEL:	DA Skennar for applicant R Derrington for second respondent
SOLICITORS:	Davidson & Sullivan for applicant Tucker & Cowan for second respondent
PARTIES:	GAVIN ALISTER HASSALL, FIONA MARY HASSALL and GAINGUARD PTY LTD (applicants) v SPEEDY GANTRY HIRE PTY LTD and VACENTIA PTY LTD (respondents)
FILE NOS:	S7534 of 1998
COUNSEL:	DA Skennar for applicant J K Bond SC, with him D A Kelly for first respondent R Derrington for second respondent
SOLICITORS:	Davidson & Sullivan for applicant James Conomos Lawyers for first respondent Tucker & Cowan for second respondent
DIVISION:	Trial Division
DELIVERED ON:	20 June 2001
DELIVERED AT:	Brisbane
HEARING DATE:	8 June 2001
JUDGE:	Mackenzie J
ORDER:	1. The applicants have leave to amend the applications in each case in the manner set out in the Draft Further Originating Application initialled by me and placed with the papers and the Draft Fourth Amended Points of Claim exhibited to the affidavit of Lionel James Davidson filed 1 June 2001. 2. That application No 7533 of 1998 and application No 7534 of 1998 be consolidated. 3. That costs of the application be costs in the cause.
CATCHWORDS:	CORPORATIONS – CONSTITUTION & LEGAL CAPACITY – INTERNAL DISPUTES – WHAT CONSTITUTES OPPRESSIVE CONDUCT – an application to further amend the originating application and points of claim in oppression proceedings under s 233 of Corporations Law – whether to consolidate the two related proceedings – whether the delay in hearing present application has been prejudicial to respondent – whether r 380 Uniform Civil Procedure Rules has been satisfied – whether oppressive conduct – whether a subjective intention not to oppress may defeat a claim of oppression – whether in determining oppressive conduct a strictly objective element is required. Corporations Law s233 Uniform Civil Procedure Rules (UCPR) r 380 Coombs v Dynasty Pty Ltd (1994) 14 ACSR 60, considered Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692, considered Wayde v NSW Rugby League Ltd (1985) 180 CLR 459, considered