NETBUSH PTY LTD -v- FASCINE DEVELOPMENTS PTY LTD & ORS [2005] WASC 73 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 73 (S)
Case No:	COR:408/2004	Heard:	24 JANUARY 2005
Coram:	SIMMONDS J	Delivered:	3/05/05
Supplementary Delivered:	26/05/05
No of pages:	15	Judgment Part:	1 of 1
Result:	Third, fourth and fifth defendants pay 60 per cent of the plaintiff's costs No order as to costs of argument as to costs
Category:	B
PDF Version

Parties:	NETBUSH PTY LTD (ACN 079 680 809) FASCINE DEVELOPMENTS PTY LTD (ACN 009 114 461) WALTER DEVELOPMENTS PTY LTD (ACN 008 703 044) WENDY JOAN BENZIE RUSSELL WALTER ROBERTS RUSMON PTY LTD (ACN 111 976 857)
Catchwords:	Practice and procedure Costs Application for relief from oppression Plaintiff's application for declaration that issues and allotments of shares invalid and related relief successful Plaintiff's application for winding up of companies unsuccessful Discretion to award relief enlivened on bases of misconduct by company directors who were joined as defendants Costs only sought from specific defendants party to the misconduct Whether defendants who did not participate in proceedings should pay costs Whether proportion of costs should be no greater than the proportion of the defendants against whom they are sought Whether costs should be reduced because of failure to secure winding up orders Liability of director for costs
Legislation:	Corporations Act 2001 (Cth) Rules of the Supreme Court 1971 (WA)
Case References:	Commissioner of Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64 Council of the City of Sydney v Woodward (No 2) [2000] NSWCA 348 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 Idacorp Pty Ltd v Freshglen Pty Ltd [2000] QSC 136 National Trustees Executors and Agency Company of Australasia Limited v Federal Commissioner of Taxation (No 2) (1954) 89 CLR 196 Netbush Pty Ltd as Trustee of the Russell Roberts Family Trust v R W Roberts Pty Ltd & Ors [2004] WASC 247 Netbush Pty Ltd v Fascine Developments Pty Ltd & Ors [2005] WASC 73 Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569 South Sydney Council v Royal Botanic Gardens and Domain Trust (No 2) [2000] NSWCA 242 Stone v Glendyc Pty Ltd [2003] WASC 80(S) Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285 Hughes v Western Australian Cricket Association Inc [1986] ATPR 40-748

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : NETBUSH PTY LTD -v- FASCINE DEVELOPMENTS PTY LTD & ORS [2005] WASC 73 (S) CORAM : SIMMONDS J HEARD : 24 JANUARY 2005 DELIVERED : 3 MAY 2005 SUPPLEMENTARY
DECISION : 26 MAY 2005 FILE NO/S : COR 408 of 2004 MATTER : Sections 175, 232, 461 and 1324 of the Corporations Act 2001

Fascine Developments Pty Ltd (ACN 009 114 461)

Walter Developments Pty Ltd (ACN 008 703 044)

BETWEEN : NETBUSH PTY LTD (ACN 079 680 809)

Plaintiff

AND

FASCINE DEVELOPMENTS PTY LTD (ACN 009 114 461)

First Defendant

WALTER…

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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Details

Case: [2005] WASC 73 (S)
Decision Date

CaseChat Overview and Summary

Netbush Pty Ltd brought an action against several defendants, seeking declarations that issues and allotments of shares were invalid and for relief by way of winding up the companies. The plaintiff sought relief on the basis of oppression of minority shareholders by the majority directors of the companies, and because of a course of dealings between the companies and a person, the fourth defendant, in respect of whom the companies had acted for his benefit, but not for the benefit of the plaintiff. The plaintiff's application was successful in part. It secured declarations that certain issues and allotments of shares were invalid and obtained a permanent injunction preventing the fifth defendant from exercising any rights in relation to the shares. The plaintiff's application for winding up orders was unsuccessful. The plaintiff sought its costs against three of the five defendants. The court exercised its discretion under O 66 of the Rules of the Supreme Court 1971 (WA) and ordered the three defendants to pay 60 per cent of the plaintiff's costs. The court declined to order any costs against the other two defendants, one of whom was a company which had not been properly managed by its directors. The court also declined to order any costs against a director who had not been party to the family dispute. The court considered it appropriate to make a single costs order for the plaintiff against the three defendants because the plaintiff's case was primarily concerned with the improper management of the companies by the directors who voted for the improper issues and allotments of shares. The court considered it appropriate to reduce the plaintiff's entitlement to costs because it had not succeeded in showing all of the forms of unfair conduct it had relied upon, nor in securing both of the major forms of relief it had sought. The court made no order as to the costs of the argument as to costs.

Orders