Heugh v Central Petroleum Ltd
[2012] WASC 155
•9 MAY 2012
HEUGH -v- CENTRAL PETROLEUM LTD [2012] WASC 155
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 155 | |
| 09/05/2012 | |||
| Case No: | CIV:1493/2012 | 16 & 17 APRIL 2012 | |
| Coram: | LE MIERE J | 17/04/12 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | JOHN PHILLIP HEUGH CENTRAL PETROLEUM LTD |
Catchwords: | Practice and procedure Termination of employment Corporation general meeting Interlocutory injunctions Balance of convenience Turns on own facts |
Legislation: | Corporations Act 2001 (Cth), s 195, s 203D |
Case References: | American Cyanamid Co v Ethicon Ltd [1975] AC 396 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Harlowe's Nominees Pty Ltd v Woodside (Lakes Entrance) Oil Co NL (1968) 121 CLR 483 Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821 Visscher v Giudice [2009] HCA 34; (2009) 239 CLR 361 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
CENTRAL PETROLEUM LTD
Defendant
Catchwords:
Practice and procedure - Termination of employment - Corporation general meeting - Interlocutory injunctions - Balance of convenience - Turns on own facts
Legislation:
Corporations Act 2001 (Cth), s 195, s 203D
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr T H F Caspersz
Defendant : Mr S M Davies SC & Mr T J Palmer
Solicitors:
Plaintiff : Tait & Co
Defendant : Ashurst Australia
Case(s) referred to in judgment(s):
American Cyanamid Co v Ethicon Ltd [1975] AC 396
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Harlowe's Nominees Pty Ltd v Woodside (Lakes Entrance) Oil Co NL (1968) 121 CLR 483
Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821
Visscher v Giudice [2009] HCA 34; (2009) 239 CLR 361
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1 LE MIERE J: The plaintiff, Mr Heugh, applied for urgent interim injunctive relief with the purpose of restraining the defendant company, Central Petroleum, from holding a general meeting of members to consider a resolution that Mr Heugh be removed as a director or for moving such a resolution at any general meeting. The plaintiff's application was heard urgently on 16 and 17 April 2012. At the conclusion of the hearing I dismissed the plaintiff's application. These are my reasons for doing so.
The dispute
2 Central Petroleum is a public company listed on the ASX. It is engaged in the business of petroleum, helium and coal exploration. Mr Heugh is a director of the company and was until 22 March 2012 employed as its managing director under a written contract of employment.
3 At a meeting on 2 February 2012 the board of directors resolved to assign the authority and responsibility for farm out dealings to the exploration manager, Mr Shortt, and form a farm out committee of the board with the committee members to be Mr Askin and Mr Dunmore. Mr Heugh attended the meeting. The minutes record that Mr Heugh voted against the resolution but stated that despite his opposition he agreed to co-operate with these new arrangements. It was determined that a letter advising Mr Shortt of the decision would be sent.
4 On 12 February 2012 Mr Heugh sent two letters to Mr Shortt. The first letter stated:
At a board meeting on the 2nd February 2012, although minutes have not been signed and it is thus technically unofficial at this stage, it was resolved (against my wishes for us to conduct a 'process' using external consultants as is the norm in the O & G industry) to have you effectively manage as many wholesale farm outs of our acreage as possible in a shorter timeframe as possible.
…
I ask that you respond to this as soon as possible to me advising whether you would like to take these responsibilities on in addition to your existing workload as Exploration Manager with full, free and complete ownership and responsibility or not. I also ask that you advise if you think some alternative arrangement might be better. Whatever you decide to do you will have more full and unqualified support as directed by the board.
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- At the same time Mr Heugh sent what was subsequently described as a letter of warning to Mr Shortt. The letter said in part:
[I] regret to inform you that pursuant to the terms of your Employment Contract … that in certain areas of your performance you are lacking an adequate level of professionalism in my opinion.
…
You are invited to discuss this with me at any time of mutual convenience. My belief is that perhaps you have too much to do and perhaps too little time to do it and I would welcome your comments on this, but nonetheless, what is presented must be accurate and well founded.
You should be aware that notwithstanding any provision of the Employment Agreement, it is my belief that the over-riding current governmental regulations require a minimum of three warnings about inappropriate performance before any further action may be taken concerning your employment.
That letter was sent by email at 10.15 am. At 10.33 am Mr Heugh sent a further email to Mr Shortt:
Trevor, I have thought through this and believe that the matters therein should be brought to your attention. However, after we discussed this on my return, I am prepared to expunge this from your records if our discussion concludes that such a caution is not required. This is entirely a legitimate process. I warn you, I can withdraw it and expunge it from all files. No other records have been kept apart from a soft copy on my desktop and nothing on the various other server hard drives. No other person has any knowledge of this. This is a discreet matter and not to be confused with any other communication or discussion that may be extant.
I have not noted the perfidy of the board in approaching [Mr Shortt] just before the board meeting on Thursday 2 February 2012, before even discussing the matter with me and asking me at least what my recommendation was.
…
Because of this breach of good faith, I am suffering stress and extreme personal anguish and I have lost much of my previous faith in the integrity of this board of directors.
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6 In the following days there were further email exchanges between Mr Heugh, the other members of the board and Mr Shortt concerning Mr Shortt being made responsible for the farm out dealings. On 12 February 2012 Mr Heugh sent a letter to the board of directors notifying a dispute pursuant to cl 16.1 of his Employment Agreement. The dispute concerned Mr Shortt being responsible for the farm out dealings.
7 The board met on 17 February 2012. Mr Heugh was recovering from eye surgery and appointed Mr Babington to attend as his alternate director. The meeting discussed the conduct of Mr Heugh in relation to the appointment of Mr Shortt to be responsible for farm out dealings. The board made the following resolutions:
- That the managing director has sought to enlist the support of the Exploration Manager in efforts to circumvent the directions of the Board concerning farmout responsibilities and so doing has subjected the exploration manager to unacceptable workplace pressure.
- This is also in contravention of cl 5.1(a) of the Managing Director's employment contract as well as the Company Code of Conduct.
- A letter will be issued under the provisions of cl 14.1(a)(iii) of the employment contract requiring this breach to be remedied within 14 days.
- This remedy will be considered completed when the letter of warning to the Exploration Manager is unconditionally withdrawn and a full apology tendered to the Exploration Manager, these to be in written form.
8 On 21 February 2012 the chairman, Mr Askin, sent a letter to Mr Heugh. The letter said, amongst other things, that Mr Heugh had obligations arising out of this employment agreement to assume and exercise the powers and perform the duties vested in or assigned to him by the board and to comply in all respects with the directions given or made by the board. The letter further said that Mr Heugh had sent various emails demonstrating his opposition to comply with the board's direction in the board resolution by attempting to circumvent the board's decision to assign full authority and responsibility for the company's oil and gas farm out efforts to the Exploration Manager and that such actions have led to Mr Heugh's persistent breach of his employment agreement. The letter then referred to Mr Heugh's treatment of Mr Shortt and said that was a breach of the employment agreement. The letter stated that in order to remedy the breaches Central Petroleum required Mr Heugh to sign two
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- letters. The first letter addressed to the chairman of Central Petroleum stated in effect, that Mr Heugh would cease handling oil and gas farm out dealings and would provide public support of the board resolution. The second letter addressed to Mr Shortt (the apology letter) unconditionally withdrew the warning letter to Mr Shortt and apologised for issuing the letter and the circumstances surrounding it. The letter further stated that Mr Heugh's actions 'were a lapse of judgment that was truly disrespectful, inappropriate and unprofessional'.
9 Mr Heugh signed and delivered the letter to the chairman. Mr Heugh declined to sign the apology letter. His solicitors informed the chairman that he declined to sign the apology letter and stated his reasons. In essence, Mr Heugh denied attempting to circumvent the board's resolution, denied that he sought to enlist the support of the exploration manager in efforts to not comply with the board's resolution or that he subjected the exploration manager to unacceptable workplace pressure. The letter said that Mr Heugh had concerns with Mr Shortt's professionalism and performance and the warning letter was issued as a result of those concerns. Mr Heugh offered to provide to Mr Shortt a letter stating that the warning letter was withdrawn and further stated:
Please accept my unreserved apology for issuing the warning letter in circumstances that may have led you to believe that unacceptable workplace pressure was being imposed on you.
- Otherwise, the proposed letter did not acknowledge any error of fault by Mr Heugh.
10 On 18 March 2012 the directors of Central Petroleum, other than Mr Heugh, signed a written resolution in accordance with r 15.10 of the company constitution. The written resolution stated that the board had considered Mr Heugh's response and determined that Mr Heugh had not remedied the breaches of his contract as required and in particular Mr Heugh had not provided a letter of apology in the form required by the board and continued to deny any wrongdoing. The written resolutions contained the following resolutions:
The Chairman … be authorised to enter into discussions with Mr Heugh regarding Mr Heugh resigning from his position as director of the Company, his employment with the company, and his appointment as Managing Director, and
Subject to the outcome of the above discussions:
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- (a) give Mr Heugh a notice of termination of his contract of employment, upon receipt of which, the termination of his employment and appointment as Managing Director will become effective, on the proviso that Mr Heugh will be paid three months' salary in lieu of three months' notice, as per clause 14.2(b) of his contract of employment;
(b) give Mr Heugh a notice of intention to move a resolution at a general meeting of the company to remove him as a director of the company; and
(c) authorise the company secretary to do all things necessary under the Corporations Act 2001 (Cth) and the Company's constitution to call a general meeting of company to consider the resolution referred to in the preceding paragraph.
11 On 22 March 2012 Central Petroleum terminated Mr Heugh's employment. The letter of termination stated that Mr Heugh had not remedied the breaches of his employment contract as required, in particular, in relation to the serious breach concerning his treatment of the exploration manager, Mr Heugh did not provide a letter of apology in the form required by the company and continued to deny any wrongdoing.
12 By letter of 22 March 2012 to Central Petroleum's solicitors, Mr Heugh's solicitors stated that Mr Heugh had not breached the terms of his employment contract and even if he had, which he denied, he had remedied those breaches. The letter went on to say that Central Petroleum had committed a breach of the employment contract by purporting to terminate the contract in circumstances where there was no valid reason to do so. The letter asserted that the contract of employment remained on foot and stated that Mr Heugh was ready, willing and able to continue working as managing director. By letter of 22 March 2012 to Mr Heugh's solicitors, the company's solicitors stated that Mr Heugh's employment with Central Petroleum had been terminated that day.
13 On 23 March 2012 Mr Heugh commenced this action against Central Petroleum. He claimed a declaration that his contract of employment remains on foot and specific performance of the contract. He further sought a declaration that any resolution of the directors purporting to resolve to terminate the contract is void. Mr Heugh sought damages against Central Petroleum for its breach of the contract of employment in purporting to terminate the contract when the company was not entitled to do so. Alternatively, if the contract was terminated, Mr Heugh sought damages for unlawful termination of the contract.
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14 On 29 March 2012 Central Petroleum gave Mr Heugh notice that the board intended to move a resolution at a general meeting of the company to remove Mr Heugh as a director.
15 On 4 April 2012 Mr Heugh's solicitors sought an undertaking from Central Petroleum that, pending determination of this action, the company would refrain from taking any steps in reliance upon the purported resolution on 18 March 2012 and the subsequent letter purporting to terminate Mr Heugh's contract of employment and to call a general meeting of members to consider a resolution that Mr Heugh be removed as a director.
16 Mr Heugh and other shareholders of Central Petroleum delivered to the company a requisition of shareholders requesting the directors to call and arrange a general meeting for the replacement of three of the company's four directors. On 5 April 2012 Central Petroleum announced that the purported requisition of a meeting was invalid and the directors did not intend to take any action to then convene a general meeting.
Relevant principles concerning interlocutory injunctions
17 In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 a majority of the High Court held that, where an interlocutory injunction is sought in respect of private rights, it is necessary to identify the legal or equitable rights which are to be determined at the trial and in respect of which the final relief is sought. Their Honours who comprised the majority in that case held that the final relief sought need not be injunctive in nature but injunctive relief must relate to the final relief sought. Gleeson CJ said:
Sir Frederick Jordan, in his Chapters on Equity in New South Wales, said:
'The purpose of an interlocutory injunction is to keep matters in status quo until the rights of the parties can be determined at the hearing of the suit.'
…
The corollary of the proposition stated by Sir Frederick Jordan is that a plaintiff seeking an interlocutory injunction must be able to show sufficient colour of right to the final relief, in aid of which interlocutory relief is sought [9] - [11].
18 In Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Gummow and Hayne JJ said that the relevant principles relating to the grant of an interlocutory injunction are those
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- explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 where the court said that on such applications the court addresses itself to two main enquiries and continued:
'The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.'
- By using the phrase 'prima facie case', their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the court continued, in a statement of central importance for this appeal:
'How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks' [65].
… obscure the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.
The second of these matters, the reference to practical consequences, is illustrated by the particular considerations which arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application. The first consideration mentioned in Beecham, the nature of the rights asserted by the plaintiff, redirects attention to the present appeal [71] - [72].
19 In the present case Mr Heugh seeks interlocutory relief in respect of his private rights. In order to obtain the relief which he seeks he must
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- identify the legal or equitable rights which are to be determined at the trial and in respect of which final relief is sought.
20 The plaintiff's case pleaded in his statement of claim is that the breaches of his contract of employment alleged by Central Petroleum did not constitute a persistent or serious breach of his contract of employment, or any breach at all. Further and alternatively, by reason of the plaintiff's commitment to support the farm out resolution and his withdrawal of the warning letter and apology to Mr Shortt, Mr Heugh had remedied any such breach. I will assume for the purposes of this application that the plaintiff has made out a prima facie case in relation to those matters and hence that he was wrongfully dismissed.
21 In his statement of claim the plaintiff goes on to plead that the written resolutions of 18 March 2012 were invalidly made and of no effect for two reasons. First, the plaintiff did not receive any prior notice of the proposed resolutions. Second, the resolutions did not further the corporate objects of the company in that it was not in the best interests of the company to terminate the contract and to remove Mr Heugh as a director of the defendant. Mr Heugh pleads that Central Petroleum was not entitled to terminate the contract of employment and by purporting to do so committed an anticipatory breach of the contract. The plaintiff says that he refused to accept the defendant's breach of contract and the contract remains on foot.
The plaintiff's case of unlawful termination
22 As I have said, I assume for the purposes of this application the plaintiff has made out a prima facie case that he did not breach his contract of employment or if he did he remedied those breaches and hence Central Petroleum unlawfully terminated his employment. However, that is not a foundation for the interlocutory injunction sought because an interlocutory injunction restraining the company from holding a general meeting of members to consider a resolution that Mr Heugh be removed as a director is not relief in aid of the final relief sought by Mr Heugh in relation to the unlawful termination of his contract of employment. Counsel for Mr Heugh submitted that Mr Heugh's employment as managing director was inextricably intertwined with his office as a director. The contract of employment does not entitle Mr Heugh to be a director of the company for as long as he is employed as its managing director. To the contrary, cl 6.2 provides that in addition to his salary, Mr Heugh will receive a director's fee 'during such period as he serves as a director of the company'. If Mr Heugh succeeds in his action for
(Page 11)
- wrongful termination and obtains a declaration that the contract remains on foot and an order for specific performance of the contract that would not entitle him to be reinstated as a director, if he had been removed as a director of the company in the meantime.
23 Even if the contract of employment purported to entitle Mr Heugh to remain a director of the company for as long as he was employed by the company under the contract of employment, that would not prevent the members of the company from removing him as a director. Corporations Act 2001 (Cth) s 203D(1) provides that a public company may by resolution remove a director from office despite anything in an agreement between the company and the director or an agreement between any or all of the members of the company and the director.
24 Furthermore, the prospects of the plaintiff obtaining an order for specific performance of his contract of employment are not sufficient to justify an interlocutory injunction in aid of that final relief.
25 The plaintiff submits that a contract of employment may continue in existence even though the employment relationship has ceased: Visscher v Giudice [2009] HCA 34; (2009) 239 CLR 361. The plaintiff contends that there is a likelihood of him establishing that his employment contract was not terminated and that it remains on foot. Nevertheless, the concepts of termination of an employment relationship and the discharge of a contract of employment are different. A wrongful dismissal terminates the employment relationship notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts an end to the contract: Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 427 (Brennan CJ, Dawson & Toohey JJ). In Visscher v Giudice a plurality of the members of the High Court said:
Further, historically the courts would not grant specific performance of a contract of personal service, save in exceptional cases. This was largely because of perceived difficulties in supervision and because the courts were unwilling to compel employers to tolerate an individual employee whom they considered incompatible [54].
26 There is no evidence of facts or circumstances that would render this an exceptional case. It would be a rare case where a court would order a public company listed on the ASX to reinstate its chief executive officer where, as here, there has been a breakdown in the relationship between the chief executive officer and the board.
(Page 12)
Plaintiff's case that 18 March resolutions invalid
27 In addition to claiming relief in aid of the final relief claimed in relation to his contract of employment, the plaintiff also seeks injunctive relief in aid of his claim for final relief in the form of a declaration that the written resolutions of 18 March 2012 were invalidly made and of no effect. The plaintiff says that is so for two reasons. First, the plaintiff was entitled to prior notice to him of a resolution proposed to be made by way of written resolution under r 15.10 of the Constitution. Second, r 15.10 only permits the making of a resolution that furthers the corporate objects of the defendant and the resolution did not further the corporate objects of the defendant in that it was not in the best interests of the company to terminate the employment contract and remove Mr Heugh as a director.
28 Clause 15.10 of the Constitution provides:
A resolution in writing signed by all the Directors for the time being (or their respective alternate Directors), except those Directors (or their alternates) who expressly indicate their abstention in writing to the Company and those who would not be permitted, by virtue of Section 195 of the Corporations Act to vote, shall be as valid and effectual as if it had been passed at a meeting of the Directors duly convened and held …
29 Section 195 of the Corporations Act provides that a director of a public company who has a material interest in a matter that has been considered at a director's meeting must not be present while the matter is being considered at the meeting or vote on the matter. It is common ground that Mr Heugh had an interest in the matter that is the subject of the written resolutions and was not entitled to vote on the matter. If there had been a meeting to consider the matter rather than a written resolution then Mr Heugh would not have been entitled to be present while the matter was being considered at the meeting.
30 The purpose of giving notice of a meeting is to enable a person to attend the meeting if he or she wishes and to be prepared to consider, discuss and vote on the matter to be considered at the meeting. Logically, a person not entitled to be present, or vote, at a meeting is not entitled to notice of the meeting. Notice would serve no purpose.
31 A director who signs a document containing a written resolution must necessarily have received notice of the proposed resolution, considered it and voted on it by signing the resolution. There is no need for any notice preceding the written resolution. If the 18 March 2012 resolutions had been considered at a meeting of directors then Mr Heugh would not have been entitled to be present at the meeting. Logically,
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- there is no need to give notice of proposed written resolutions to a director who is not permitted, by virtue of s 195 of the Corporations Act, to vote. It would serve no purpose to do so.
32 Clause 15.10 provides that a resolution in writing signed by all the directors, except those who would not be permitted to vote by virtue of s 195 of the Corporations Act, shall be as valid and effectual as if it had been passed at a meeting of the directors duly convened and held. The clause does not require notice of the proposed written resolution to be given to those directors who would not be permitted, by virtue of s 195 of the Corporations Act, to vote. There is nothing in the text or context of the clause which requires such notice to be given. The plaintiff's argument that the resolutions of 18 March are invalid because notice was not given to Mr Heugh does not have sufficient prospect of success to justify the grant of an interlocutory injunction.
33 The plaintiff's next argument is that the resolutions of 18 March 2012 are invalid because they were not in the best interests of the company. There are two principal standards of loyalty that must be satisfied by a board decision: it must be made in good faith in the interests of the company, and it must be made for a proper purpose. However, a decision of the board of directors is not invalid because it fails to further the corporate objects of a company in the sense that the resolution is objectively in the best interests of the company. In Harlowe's Nominees Pty Ltd v Woodside (Lakes Entrance) Oil Co NL (1968) 121 CLR 483, 493 Barwick CJ, McTiernan and Kitto JJ said:
Directors in whom are vested the right and duty of deciding where the company's interests lie and how they are to be served may be concerned with a wide range of practical considerations, and their judgment, if exercised in good faith and not for irrelevant purposes, is not open to review in the courts.
- The Privy Council said in Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821, 832:
There is no appeal on merits from management decisions to courts of law: nor will courts of law assume to act as a kind of supervisory board over decisions within the powers of management honestly arrived at.
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Balance of convenience
35 In exercising its discretion to grant an injunction, the court is required to assess and compare the prejudice and hardship likely to be suffered by the defendant and third persons if an injunction is granted, with that which is likely to be suffered by the plaintiff if no injunction is granted. In the present case I must assess and compare the prejudice and hardship likely to be suffered by Central Petroleum, the other directors and its shareholders if injunctions are granted with that which is likely to be suffered by Mr Heugh if no injunction is granted. In determining these matters, I must make an assessment of the likelihood that the final relief, if granted, will adequately compensate and protect those affected by the alleged wrongful conduct for any continuing consequences of that conduct which may occur between now and the date when final relief might be expected to be granted.
36 In proceedings brought by a director or shareholder to restrain the holding of a general meeting or to restrain the putting of particular resolutions to such a meeting, a court should be cautious before interfering on an interlocutory basis in the conduct of the meeting prior to it being held. A court should not readily restrain the deliberations of shareholders at properly convened meetings but rather allow those shareholders to consider and decide upon matters put to them even in circumstances where it is suggested by a plaintiff shareholder or director that the putting of those resolutions might be unlawful. Except in the clearest of cases, it will often be desirable to ascertain the will of the meeting before considering whether to interfere in the deliberations of the meeting.
37 In order to address the irreparable injury question, the balance of convenience and the balance of justice in the present case, it is necessary to consider the nature and strength of Mr Heugh's case as well as the effect and impact of granting or refusing an interlocutory injunction.
38 The strength of the probability of the plaintiff ultimately succeeding in obtaining final relief which establishes a right not to be removed as a director at a meeting of members convened as a result of the resolutions of 18 March 2012 is not sufficient to justify the grant of the interlocutory injunction sought.
39 There is a further matter which weighs against the grant of an interlocutory injunction. The grant of the injunction sought would not prevent Mr Heugh being removed as a director. A single director or
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- members of the company may lawfully convene a meeting to remove Mr Heugh as a director.
Conclusion
40 For all of these reasons I determined that the interlocutory injunctions sought should be refused.