LPD Holdings (Aust) Pty Ltd v Phillips, Hickey and Toigo & Anor [2013] QSC 225
PARTIES:
LPD HOLDINGS (AUST) PTY LTD ACN 060 214 511 (plaintiff/respondent) v ALAN SPENCE PHILLIPS, SIMON HICKEY AND JOHN DOMINIC TOIGO (first defendants/first applicants) and MACARTHUR MINERALS LIMITED ACN 103 011 436
(second defendant/second applicant)
FILE NO/S:
BS 11108 of 2012
DIVISION:
Trial Division
PROCEEDING:
Interlocutory application
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
28 August 2013
DELIVERED AT:
Brisbane
HEARING DATE:
26 April 2013
Further written submissions provided on 2 May 2013.
JUDGE:
Philip McMurdo J
ORDERS:
1. The plaintiff file and serve an amended statement of claim, in terms which are consistent with this judgment, within 21 days.
2. The applications by the first and second defendants are adjourned to a date to be fixed.
CATCHWORDS:
CORPORATIONS – MEMBERSHIP, RIGHTS AND REMEDIES – MEMBERS’ REMEDIES AND INTERNAL DISPUTES – OPPRESSIVE OR UNFAIR CONDUCT – WHAT CONSTITUTES – CONDUCT OF OR RELATING TO DIRECTORS – where plaintiff brings proceedings against a company of which it is a shareholder for relief pursuant to s 233 of the Corporations Act 2001 (Cth) – where plaintiff also brings proceedings against the company’s directors for relief under s 233 – where plaintiff complained of misconduct by the directors – where plaintiff did not seek leave to proceed under s 237 of the Corporations Act2001 (Cth) – where plaintiff sought compensation under s 233 – whether the plaintiff can bring proceedings under s 233 instead of s 237 – whether the broad powers expressed in s 233 are qualified by excluding a power to grant relief for acts or omissions for which the company would have a cause of action under s 236 of the Corporations Act 2001 (Cth) – whether the plaintiff can obtain compensation from the directors of the company as a shareholder of the company
Corporations Act 2001 (Cth), s 169, s 231, s 232, s 234, s 236, s 237
D Savage SC, with C Jennings, for the plaintiff/respondent L Kelly SC, with D Pyle, for the first defendants/first applicants
P Dunning SC, with D O’Brien, for the second defendant/second applicant
SOLICITORS:
Russells for the plaintiff/respondent Clayton Utz for the first defendants/first applicants
Hopgood Ganim…
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.
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AGLC
LPD Holdings (Aust) Pty Ltd v Phillips [2013] QSC 225
Case
[2013] QSC 225
Decision Date
CaseChat Overview and Summary
LPD Holdings (Aust) Pty Ltd, a shareholder in a company, initiated proceedings against the company and its directors, seeking relief under section 233 of the Corporations Act 2001 (Cth). The plaintiff claimed that the company's directors engaged in oppressive or unfair conduct, which was detrimental to the interests of the shareholders, including the plaintiff. The defendants argued that the plaintiff's claims should be dismissed as it did not seek leave to proceed under section 237 of the Corporations Act 2001 (Cth) and instead sought compensation under section 233. The court had to determine if the plaintiff could bring proceedings under section 233 instead of section 237 and if the broad powers expressed in section 233 were qualified by excluding a power to grant relief for acts or omissions for which the company would have a cause of action under section 236 of the Corporations Act 2001 (Cth). Additionally, the court needed to decide if the plaintiff could obtain compensation from the directors of the company as a shareholder.
The court found that the plaintiff could not bring proceedings under section 233 instead of section 237 as it did not seek leave to proceed under section 237. The court held that the broad powers expressed in section 233 were not qualified by excluding a power to grant relief for acts or omissions for which the company would have a cause of action under section 236 of the Corporations Act 2001 (Cth). The court also found that the plaintiff could not obtain compensation from the directors of the company as a shareholder as it was not a party to the contract and had no direct cause of action against the directors. The court ordered that the plaintiff file and serve an amended statement of claim, in terms which are consistent with this judgment, within 21 days. The applications by the first and second defendants were adjourned to a date to be fixed.
Orders
Orders of the court
1. The plaintiff file and serve an amended statement of claim, in terms which are consistent with this judgment, within 21 days.
2. The applications by the first and second defendants are adjourned to a date to be fixed.