McGEACHIE & ORS -v- CLARK & ORS [2005] WASC 177

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 177
Case No:	CIV:1901/2005	Heard:	19 JULY 2005
Coram:	COMMISSIONER ODES QC	Delivered:	11/08/05
No of pages:	14	Judgment Part:	1 of 1
Result:	Application dismissed with costs to be taxed
Category:	B
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Parties:	CATHERINE JOY McGEACHIE RICHARD MITFORD ROWELL GRAHAM SYDNEY BENSTEAD AURELIA MARIA MAZZOLENI LEE FRANCES NASH WESLEY IAN CHARLES NASH JAN IRVINE AMRIT KENDRICK GARY KENDRICK RICHARD CLARK DENNIS BEERE JURGEN WERNER PREUSS GAVAN KELLY SILVER FOX INVESTMENTS PTY LTD (ACN 081 888 048) MIDWAY ASSET PTY LTD (ACN 097 037) CHURCHLANDS HOLDINGS PTY LTD (ACN 098 551 645) PETER ANDRE GRANT
Catchwords:	Urgent interlocutory injunctions Orders to prevent resolutions being put at annual general meeting Approach of court Exception to general rule of non-intervention
Legislation:	Strata Titles Act 1985 (WA), s 19
Case References:	Carr Boyd Minerals Limited v Ashton Mining Limited and Ors (1989) 15 ACLR 599 Hopkins Professional Services Pty Ltd v Foyster Holdings Pty Ltd (2001) 39 ACSR 519 Paringa Mining & Exploration Co plc v North Flinders Mines Limited (1988) 52 SASR 22 Pettaras v Pettaras [2004] NSWSC 1212 Tang v Bongreen Pty Ltd (2003) 47 ACSR 400 Uniting Church of Australia Property Trust (NSW) v Macquarie Radio Network Pty Ltd (1997) 24 ACSR 721 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : McGEACHIE & ORS -v- CLARK & ORS [2005] WASC 177 CORAM : COMMISSIONER ODES QC HEARD : 19 JULY 2005 DELIVERED : 11 AUGUST 2005 FILE NO/S : CIV 1901 of 2005 BETWEEN : CATHERINE JOY McGEACHIE

RICHARD MITFORD ROWELL

First Plaintiffs

GRAHAM SYDNEY BENSTEAD

AURELIA MARIA MAZZOLENI

Second Plaintiffs

LEE FRANCES NASH

WESLEY IAN CHARLES NASH

Third Plaintiffs

JAN IRVINE

Fourth Plaintiff

AMRIT KENDRICK

GARY KENDRICK

Fifth Plaintiff

AND

RICHARD CLARK

First Defendant

DENNIS BEERE

Second Defendant

(Page 2)

JURGEN WERNER PREUSS

Third Defendant

GAVAN KELLY

Fourth Defendant

SILVER FOX INVESTMENTS PTY LTD (ACN 081 888 048)

Fifth Defendant

MIDWAY ASSET PTY LTD (ACN 097 037)

Sixth Defendant

CHURCHLANDS HOLDINGS PTY LTD (ACN 098 551 645)

Seventh Defendant

PETER ANDRE GRANT

Eighth Defendant

Catchwords:

Urgent interlocutory injunctions - Orders to prevent resolutions being put at annual general meeting - Approach of court - Exception to general rule of non-intervention

Legislation:

Strata Titles Act 1985 (WA), s 19

Result:

Application dismissed with costs to be taxed

(Page 3)

Category: B

Representation:

Counsel:

First Plaintiffs : Mr I A Morison

Second Plaintiffs : Mr I A Morison

Third Plaintiffs : Mr I A Morison

Fourth Plaintiff : Mr I A Morison

Fifth Plaintiff : Mr I A Morison

First Defendant : Mr W S Martin QC

Second Defendant : Mr W S Martin QC

Third Defendant : Mr W S Martin QC

Fourth Defendant : Mr W S Martin QC

Fifth Defendant : Mr W S Martin QC

Sixth Defendant : Mr W S Martin QC

Seventh Defendant : Mr W S Martin QC

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 McGEACHIE v Clark

Details

AGLC: McGEACHIE v Clark [2005] WASC 177
Case: [2005] WASC 177
Decision Date

CaseChat Overview and Summary

The plaintiffs, who are members of a strata company, sought an urgent ex parte interlocutory injunction to prevent the passage of certain motions at the annual general meeting. The primary concern of the plaintiffs was to avoid any alteration or termination of the Strata Plan, which consisted of 118 hectares of common property. The legal issues involved the general reluctance of courts to intervene in meetings of corporations or strata companies and the exceptional circumstances under which such intervention might be justified. The court considered the precedents set in cases such as Uniting Church of Australia Property Trust (NSW) v Macquarie Radio Network Pty Ltd, Hopkins Professional Services Pty Ltd v Foyster Holdings Pty Ltd, Paringa Mining & Exploration Co plc v North Flinders Mines Limited, and Carr Boyd Minerals Limited v Ashton Mining Limited and Ors. These cases emphasised the fundamental right of members to convene meetings and move resolutions, and the courts' reluctance to interfere unless there was clear evidence of serious misconduct or irreparable harm. In this case, the proposed resolutions at the annual general meeting did not relate to the alteration of the Strata Plan or the re-subdivision of lots, and therefore did not fall within the exceptional circumstances for court intervention. The court concluded that the plaintiffs had not established a serious question to be tried and that the balance of convenience did not favour disturbing the status quo. Consequently, the application for the interlocutory injunction was dismissed, and the plaintiffs were ordered to pay the costs of the application.

Orders