Mango Boulevard Pty Ltd v Spencer

Case [2008] QSC 117

SUPREME COURT OF QUEENSLAND

CITATION:

Mango Boulevard Pty Ltd v Spencer & Ors [2008] QSC 117

PARTIES:

MANGO BOULEVARD PTY LTD
(ACN 101 544 601)
(plaintiff)
v
RICHARD WILLIAM SPENCER
(first defendant)
and
SILVANA PEROVICH
(second defendant)
and
KINSELLA HEIGHTS DEVELOPMENTS PTY LTD
(ACN 100 373 368)
(third defendant)
and
MIO ART PTY LTD (ACN 010 101 875)
(fourth defendant)

FILE NO:

1999 of 2006

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

20 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2008 – 4 March 2008

JUDGE:

Chesterman J

ORDER:

Order that
1. The defence and counter-claim filed by leave on 3 March 2008 (save for paragraph 1) be struck out (no leave to re-plead).
2. Judgment for the plaintiff on the counter claim.
3. Mr Paul Desmond Sweeney and Mr Terry Grant van der Velde, as trustees of the property of the first and second defendants respectively, be joined as fifth and sixth defendants.
4. The plaintiff given leave to proceed against the first and second defendants.

CATCHWORDS:

CORPORATIONS – CORPORATE FINANCE – SHARES – TRANSFER – whether the plaintiff has become entitled to a transfer of shares initially held by the first and second defendant.

Cases
Arrow Nominees Inc v Blackledge (2000) 2 BCLC 167, cited
Armitage v Nurse (1999) Ch 241, cited
Baines v State Bank of New South Wales (1985) 2 NSWLR 729, cited
Birkett v James [1978] AC 297, cited
Jackson v Goldsmith (1950) 81 CLR 446, cited
Kok Hoong v Luong Chuong Kweng Mines Ltd [1964] AC 993, cited
KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] 2 Qd R 13, cited
Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508, followed
New Brunswick Railway Company v British and French Trust Corporation [1939] AC 1, cited
Pople v Evans (1969) 2 Ch 255, cited
R v Middlesex Justices ex parte Bond [1933] 2 KB 1, followed
Re South American and Mexican Co [1895] 1 Ch 37, cited
Rogers v Legal Services Commission [1995] 64 SASR 572, followed, cited
State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423, followed
The Sennar (No 2) (1985) 1 WLR 490, cited
Walton v Gardiner (1992-1993) 177 CLR 378, followed

Regulations

Uniform Civil Procedures Rules 1999,r 293, r171, r149(1)(c), r157(a), r72

COUNSEL:

Mr J Bond SC with Mr T Bradley for the plaintiff
JN Conomos for the second defendant
Ms GJ Handran for the third defendant
MM Stewart with SS Monks and PS McCafferty for the fourth defendant

SOLICITORS:

Minter Ellison for the plaintiff
James Conomos Lawyers for the second defendant
Tucker and Cohen for the third defendant
Lillas & Loel Lawyers for the fourth defendant

  1. The plaintiff (‘Mango Boulevard’) owns half of the issued shares in the third defendant (‘Kinsella’) having acquired 25 shares from each of the first and second defendants (‘defendants’) in July 2003.

  1. Kinsella carries…

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Details
AGLC
Mango Boulevard Pty Ltd v Spencer [2008] QSC 117
Case
[2008] QSC 117
Decision Date

CaseChat Overview and Summary

Mango Boulevard Pty Ltd, the plaintiff, commenced proceedings against the first and second defendants seeking a declaration that the plaintiff is entitled to a transfer of shares from the first and second defendants. The first and second defendants disputed the plaintiff's entitlement to the shares, and subsequently, the third defendant (as liquidator of the first defendant) was joined as the fourth defendant. The plaintiff then filed a defence and counter-claim against the first and two subsequent defendants.

The primary legal issue before the court was whether the plaintiff had become entitled to a transfer of shares initially held by the first and second defendants. This required the court to examine the terms of the share transfer agreement and the relevant provisions of the Corporations Act. Additionally, the court needed to determine the appropriate orders to be made in light of the procedural irregularities in the pleadings and the necessity of joining additional defendants.

The court found that the plaintiff had indeed become entitled to the shares, and that the procedural issues with the pleadings warranted the striking out of the defence and counter-claim, except for paragraph 1, which was to be preserved for potential future use. The court also determined that the trustees of the first and second defendants should be joined as parties to the proceedings. Consequently, the court ordered that judgment be given to the plaintiff on the counter-claim and that the trustees be added as defendants. Furthermore, the court granted the plaintiff leave to proceed against the first and second defendants.

The court's final orders included the striking out of the defence and counter-claim, except for paragraph 1, judgment for the plaintiff on the counter-claim, the joining of the trustees as parties, and the granting of leave for the plaintiff to proceed against the first and second defendants.

Orders

Orders of the court

Order that

1. The defence and counter-claim filed by leave on 3 March 2008 (save for paragraph 1) be struck out (no leave to re-plead).

2. Judgment for the plaintiff on the counter claim.

3. Mr Paul Desmond Sweeney and Mr Terry Grant van der Velde, as trustees of the property of the first and second defendants respectively, be joined as fifth and sixth defendants.

4. The plaintiff given leave to proceed against the first and second defendants.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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