Mishme Enterprises Pty Ltd v Nticed Pty Ltd

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
CORPORATIONS LIST
PRACTICE COURT

No. SCI 2013 1710

MISHME ENTERPRISES PTY LTD (ACN 126 963 719)	Plaintiff
V
NTICED PTY LTD (ACN 115 793 345)	Defendant

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JUDGE:	FERGUSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2013
DATE OF JUDGMENT:	11 April 2013 (revised 23 April 2013)
CASE MAY BE CITED AS:	Mishme Enterprises Pty Ltd v Nticed Pty Ltd
MEDIUM NEUTRAL CITATION:	[2013] VSC 187

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CORPORATIONS – Interlocutory injunction sought to restrain holding of meeting of members – Meeting called by defendant who appears as shareholder in ASIC extract - Notice of Meeting proposes removal of current directors and replacement with new directors – Current directors contend uncertainty about identity of shareholders and that no share register in existence - Current directors resolved to postpone meeting – Whether power to postpone exercised arbitrarily – Corporations Act 2001 (Cth) ss 169, 249F.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr O Bigos	Maddocks
For the Defendant	Mr D Luxton	Tress Cox Lawyers

HER HONOUR:

1. Mr Easterby-Wood is the sole director of the defendant, Nticed Pty Ltd, and until February 2013 was the managing director of the plaintiff, Mishme Enterprises Pty Ltd, a company which he established in August 2007. 

1. The current directors of Mishme are Mr Steven Wright, Mr Peter Bares and Mr Lee Cronly-Dillon.  Companies with which Mr Wright and Mr Bares are associated have paid over a million dollars for shares in Mishme and an ASIC[1] company extract lists those entities as shareholders.  The ASIC company extract also lists Nticed as a shareholder with over 4 million shares in Mishme.  Nticed did not pay cash for any shares.

   [1]Australian Securities and Investments Commission.

1. Mishme seeks an interlocutory injunction to restrain Nticed, its officers and agents from arranging to hold, holding or purporting to hold a general meeting of Mishme pursuant to a notice of meeting purportedly given under s 249F of the Corporations Act 2001 (Cth). The notice is dated 19 March 2013 and purports to call a meeting for 12 April 2013. The notice of meeting contains proposed resolutions to remove the current directors and to replace them with new directors (including Mr Easterby-Wood).

1. On 3 April 2013, the current board of directors resolved that the meeting be postponed until 12 July 2013. They did so under clause 14.3(a) of Mishme’s constitution. Clause 14.3 (a) reads as follows:

The Directors may postpone or cancel any general meeting whenever they think fit but can only postpone or cancel a general meeting convened as a result of a request from a Member or Members under section 249D of the Corporations Act, if they have received a signed notice from that Member or Members withdrawing their request for the meeting.

1. Essentially, the current directors say that they are concerned that:

(a)there is no share register that accurately records the shareholding in Mishme;

(b)ASIC’s records as to the shareholding in Mishme may be unreliable;