Hest Pty Ltd v Sweetman Renewables Ltd

FEDERAL COURT OF AUSTRALIA

Hest Pty Ltd v Sweetman Renewables Ltd [2022] FCA 337

File number:

NSD 220 of 2022

Judgment of:

LEE J

Date of judgment:

1 April 2022

Date of publication of reasons:

5 April 2022

Catchwords:

CORPORATIONS – urgent hearing – application for declaratory relief that resolutions of the company in general meeting removing three directors and appointing four new directors were valid

PRACTICE AND PROCEDURE – declarations – declarations by consent – power to make declarations by consent – proper contradictor – whether a “matter” – whether party who consents is a proper contradictor

Legislation:

Federal Court of Australia Act 1976 (Cth) s 21

Cases cited:

Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378

Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421

Geneva Laboratories Limited v Prestige Premium Deals Pty Ltd (No 4) [2016] FCA 867; (2016) 120 IPR 133

IMF (Australia) Ltd v Sons Of Gwalia Ltd (Administrator Appointed) ACN 008 994 287 [2004] FCA 1390; (2004) 211 ALR 231

Williams v Powell [1894] WN (Eng) 141

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Number of paragraphs:

8

Date of hearing:

1 April 2022

Counsel for the Applicant:

Mr N Bender with Mr A Rizk

Solicitor for the Applicant:

Hamilton Locke

Counsel for the Respondents:

Mr M McGirr

Solicitor for the Respondents:

Stonebraker Lawyers

ORDERS

NSD 220 of 2022

BETWEEN:

HEST PTY LTD ACN 644 010 337

Applicant

AND:

SWEETMAN RENEWABLES LTD ACN 646 172 385

First Respondent

JOHN CLAUDE HALKETT

Second Respondent

GARRY KEITH MILLAR (and another named in the Schedule)

Third Respondent

ORDER MADE BY:	LEE J
DATE OF ORDER:	1 APRIL 2022

THE COURT DECLARES THAT:

1.At the meeting of members of the respondent on 14 March 2022:

(a)resolutions to remove each of the second to fourth respondents as directors of the first respondent were validly passed such that they ceased to hold office on 14 March 2022; and

(b)resolutions to appoint each of John Forder, Martin Kennedy, Kenneth MacMillan and Yianni Chapley as directors of Sweetman Renewables Ltd ACN 646 172 385 were validly passed such that they commenced to hold office on 14 March 2022.

THE COURT ORDERS THAT:

2.There be no order as to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Delivered ex tempore, revised from the transcript)

LEE J:

1. On 30 March 2022, I made orders providing for the short service of, among other things, an originating application seeking relief in terms of declarations that: (a) at a meeting of members of Sweetman Renewables Ltd (company) on 14 March 2022 (meeting), resolutions to remove three directors of the company were validly passed, such that they ceased to hold office from the time of the resolution; and (b) resolutions to appoint four directors of the…