Kang v JK Global Pty Ltd - [2013] NSWSC 1152

Supreme Court

New South Wales

Medium Neutral Citation: Kang v JK Global Pty Ltd & Ors [2013] NSWSC 1152
Hearing dates: 13 August 2013
Decision date: 13 August 2013
Jurisdiction: Equity Division - Corporations List
Before: Black J
Decision:
Plaintiff's notice of motion dismissed. Orders made for Plaintiff to pay the Defendants' costs for the day, as agreed or as assessed. Orders made for the correction of the title of proceedings.

Catchwords: PROCEDURE - interlocutory relief - interlocutory orders sought for the nomination of trustees to hold on trust all of the shares of the company and for the appointment of directors to the company for day-to-day management of the company - where the defendants argue that the plaintiff does not hold shares in the company - where ASIC searches at different times show different results about the ownership of shares - the Court's power to grant interlocutory relief under s 66 of the Supreme Court Act 1970 (NSW) - whether the balance of convenience favours the grant of relief where the orders would be substantially adverse to the defendants - whether the terms of the proposed orders are too indeterminate - whether the proposed appointment of directors would be outside the established structure of the company's constitution and the Corporations Act 2001 (Cth).
Legislation Cited: - Corporations Act 2001 (Cth) ss 9, 180-83, 232, 233, 23(1)(b), 233(1)(c), 233(1)(f), 234(c), 1274, 1324
- Supreme Court Act 1970 (NSW) s 66
Cases Cited: - Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Stratford Sun Ltd v OM Holdings [2011] FCA 414; (2011) 83 ACSR 84
Category: Interlocutory applications
Parties: Seo Hee Kang (Plaintiff)
JK Global Pty Ltd (First Defendant)
Ji Woong Jung (Second Defendant)
Young Chul Park (Third Defendant)
Baejung Jung (Fourth Defendant)
Representation: Counsel:
T. Holmes (Plaintiff)
B. Pierce (Defendants)
Solicitors:
Panacea Lawyers (Plaintiff)
CSY Legal (Defendants)

File Number(s): 2013/76391

Judgment

By Notice of Motion dated 13 May 2013 the Plaintiff, Ms Seo Hee Kang ("Ms Kang") seeks elaborate interlocutory orders in respect of the first Defendant, JK Group Pty Limited ("Company"). In broad summary, those interlocutory orders would provide for each of Ms Kang on the one hand and the Second-Fourth Defendants on the other to nominate an individual to be a trustee of the shares of the Company, and for the trustees to continue to hold all of those shares on trust until further order of the Court. Ms Kang does not seek herself to be appointed as trustee. The orders would provide that no further shares are be issued by the Company. The trustees would be required to appoint two directors of the Company, with Ms Kang not to be a director, and day to day management of the Company would be conducted by those directors until further order, with each director to have an equal vote in management decisions but each director to be restrained from taking certain steps. Any distributions…

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 Kang v JK Global Pty Ltd

Details

AGLC: Kang v JK Global Pty Ltd [2013] NSWSC 1152
Case: [2013] NSWSC 1152
Decision Date: 13 August 2013

CaseChat Overview and Summary

In the matter of Kang v JK Global Pty Ltd, the plaintiff sought interlocutory orders to have trustees appointed to hold the company's shares on trust and directors appointed to manage the company's day-to-day affairs. The defendants, JK Global Pty Ltd, contested the application, arguing that the plaintiff did not hold shares in the company and that any orders made would be substantially adverse to them. The court was tasked with determining whether the plaintiff met the criteria for interlocutory relief under section 66 of the Supreme Court Act 1970 (NSW) and whether the balance of convenience favoured granting such relief.

The court considered the balance of convenience and whether the proposed terms of the orders were too indeterminate. ASIC searches conducted at different times yielded conflicting results about the ownership of the shares, complicating the issue. The court also evaluated whether the appointment of directors under the proposed orders would comply with the company's constitution and the Corporations Act 2001 (Cth). Given the contested ownership of shares and the potential adverse effects on the defendants, the court determined that the balance of convenience did not favour granting the relief sought by the plaintiff.

Ultimately, the court found that the plaintiff had not established a strong case for the relief sought, and the terms of the proposed orders were too indeterminate. The court also concluded that the appointment of directors under the proposed orders would not comply with the established structure of the company's constitution and the Corporations Act 2001 (Cth). As a result, the court dismissed the application for interlocutory relief. No orders were made in favour of the plaintiff.

Orders