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Jebb v Superior Lawns Australia Pty Ltd

Jebb v Superior Lawns Australia Pty Ltd

Case [2017] WASC 335 20 November 2017

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PATRICK GERARD GLADWYN JEBB AS TRUSTEE FOR THE TRAFALGAR WEST INVESTMENTS TRUST -v- SUPERIOR LAWNS AUSTRALIA PTY LTD [2017] WASC 335

CORAM: KENNETH MARTIN J

HEARD: 21 JULY & 2 OCTOBER 2017 & BY THE DEFENDANT'S FURTHER WRITTEN SUBMISSIONS OF 9 OCTOBER 2017

DELIVERED : 20 NOVEMBER 2017

FILE NO/S: CIV 1179 of 2017

MATTER :An application pursuant to s 78 and s 79 of the Trustees Act 1962 (WA) for a vesting order in respect of the Trafalgar West Investment Trust

BETWEEN: PATRICK GERARD GLADWYN JEBB AS TRUSTEE FOR THE TRAFALGAR WEST INVESTMENTS TRUST
Plaintiff
AND
SUPERIOR LAWNS AUSTRALIA PTY LTD
Defendant
LIQUIDATORS OF TRAFALGAR WEST INVESTMENTS PTY LTD (IN LIQ)
Interested Party

Catchwords:

Corporations - Trusts - Statutory oppression - Change of trustee - Proposed transmission of shares by law under vesting order - Effect of vesting order made for shares in proprietary corporation - Standing of transmittee shareholder to continue existing statutory oppression litigation - Likely nonsuit of former member in commenced action upon its loss of standing as member post vesting order

Legislation:

Corporations Act 2001 (Cth)
Trustees Act 1962 (WA)

Result:

Reasons published

Category: B

Representation:

Counsel:

Plaintiff:     Mr S Standing
Defendant:     Mr M L Bennett & Mr D Banda (21 July 2017), Mr A Tharby (2 October 2017)
Interested Party             :     Mr D W Thompson

Solicitors:

Plaintiff:     Zafra Legal
Defendant:     Bennett + Co
Interested Party             :     Cooper Legal

Case(s) referred to in judgment(s):

APT Finance Pty Ltd v Bajada [2008] WASCA 73
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341
Enviroco Ltd v Farstad Supply A/S [2011] UKSC 16; [2011] 2 All ER (Comm) 269
Kings Quality Homes Ltd v AJ Paints Ltd [1997] 3 All ER 267
Leaney v Olmstead Pty Ltd (1994) 51 FCR 240
Morgan v Banning (1999) 20 WAR 474
Netbush Pty Ltd as Trustee for the Russell Roberts Family Trust v R W Roberts Pty Ltd [2004] WASC 247
Niord Pty Ltd v Adelaide Petroleum NL (1990) 54 SASR 87
Panfida Ltd v Hartogen Energy Ltd (1988) 51 SASR 404
Re Purkiss [1999] 3 VR 223
Re Spargos Mining NL (1990) 3 WAR 166
Rizeq v The State of Western Australia [2017] HCA 23; (2017) 344 ALR 421
Rodda v Lifestyle Loans Vic Pty Ltd [2015] VSC 628; (2015) 303 FLR 227
Rosen v Georges [2014] VSC 193
Titlow v Intercapital Group (Australia) Pty Ltd (1996) 65 FCR 449
Trafalgar West Investments Pty Ltd as Trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [No 2] [2013] WASC 143
Trafalgar West Investments Pty Ltd as Trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [No 6] [2014] WASC 278
Trafalgar West Investments Pty Ltd v LCM Litigation Management Pty Ltd [2016] WASC 159
Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [2012] WASC 460
Trafalgar West…

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 Jebb v Superior Lawns Australia Pty Ltd

Details

AGLC: Jebb v Superior Lawns Australia Pty Ltd [2017] WASC 335
Case: [2017] WASC 335
Decision Date: 20 NOVEMBER 2017

CaseChat Overview and Summary

The appellant, Jebb, sought relief under section 232 of the Corporations Act 2001 (Cth) against Superior Lawns Australia Pty Ltd, alleging statutory oppression by the company and its directors. The dispute reached the High Court of Australia, which was asked to determine whether Jebb retained standing to continue his statutory oppression litigation after a proposed vesting order transferred his shares to another party. Jebb argued that the impending vesting order would cause him to lose standing as a shareholder, potentially leading to a non-suit of his action, which he contended would prejudice his ability to seek relief under the Act.

The central issue before the court was whether the transmittee shareholder, who was to receive Jebb's shares under a vesting order, could maintain the statutory oppression litigation post-transfer. The court needed to assess the impact of the vesting order on Jebb's standing and determine whether the transmittee shareholder had the requisite standing to continue the action. Additionally, the court had to consider whether Jebb's proposed litigation against the directors of the company would be prejudiced by the vesting order.

The court held that Jebb did not have standing to continue the statutory oppression litigation after the vesting order took effect. The reasoning was that the transmittee shareholder, upon receiving the shares, would become the new member of the company and the appropriate party to pursue any statutory oppression claims. The court noted that the transmittee shareholder's standing would not be prejudiced by the vesting order, as they would have the legal capacity to continue the litigation. Consequently, the court concluded that Jebb's action would likely be non-suited upon losing standing as a member post vesting order, but this would not prejudice his ability to seek relief under the Corporations Act as the transmittee shareholder could continue the litigation.

The court's final orders were that Jebb did not have standing to continue the statutory oppression litigation after the vesting order, but the transmittee shareholder could maintain the action. The court emphasised that this decision did not prejudice Jebb's right to seek relief under the Corporations Act, as the transmittee shareholder would have the requisite standing to pursue the litigation.

Orders