Pavlakis v Equmen Pty Limited (No 3) - [2014] FCA 1274

FEDERAL COURT OF AUSTRALIA
Pavlakis v Equmen Pty Limited (No 3) [2014] FCA 1274

Citation: Pavlakis v Equmen Pty Limited (No 3) [2014] FCA 1274

Parties: ANTHONY PAVLAKIS and GAVIN JONES COMMUNICATIONS PTY LIMITED v EQUMEN PTY LIMITED ACN 129 797 315

File number(s): NSD 857 of 2014

Judge(s): YATES J

Date of judgment: 6 November 2014

Catchwords: CORPORATIONS - application under s 175 of the Corporations Act 2001 (Cth) for correction of defendant’s register of members

Legislation: Corporations Act 2001 (Cth) ss 175, 436B, 437C

Cases cited: Pavlakis v Equmen Pty Limited [2014] FCA 929
Pavlakis v Equmen Pty Ltd (No 2) [2014] FCA 951

Date of hearing: 6 November 2011

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 13

Solicitor for the First Plaintiff: Benjamin Nicholson Law (Ms K Nicholson appearing)

Counsel for the Second Plaintiff: Mr R Marshall

Solicitor for the Second Plaintiff: Benjamin Nicholson Law

The Defendant: Did not appear
Counsel for Mr Levi: Mr R Marshall
Solicitor for Mr Levi: Gillis Delaney Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 857 of 2014

BETWEEN:
ANTHONY PAVLAKIS
First Plaintiff

GAVIN JONES COMMUNICATIONS PTY LIMITED
Second Plaintiff

AND:
EQUMEN PTY LIMITED ACN 129 797 315
Defendant

JUDGE:

YATES J

DATE OF ORDER:

6 NOVEMBER 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Pursuant to s 175 of the Corporations Act 2001 (Cth) the register of members of the defendant be corrected by:
(a)removing the name of Corie Kim Chung therefrom as the holder of 25 fully‑paid ordinary shares in the defendant; and
(b)recording the second plaintiff to be the holder of 100 fully-paid ordinary shares in the defendant, currently being all the issued fully-paid ordinary shares in the defendant,

with effect from 20 May 2012.
2.Order 4 made on 20 August 2014, be varied nunc pro tunc to read:
“On the plaintiff, by his counsel giving the usual undertaking as to damages, David Levi, an official liquidator, be appointed liquidator of Equmen Pty Limited provisionally, pursuant to s 472(2) of the Corporations Act 2001 (Cth), with power to implement any order made by the Court for the correction of the defendant’s register of members and to do all other acts incidental thereto.”
3.The appointment of David Levi as provisional liquidator of the defendant be terminated as at 3.15 pm on 6 November 2014.
4.The amended originating process filed on 22 October 2014 be dismissed with no order as to costs.
5.Save for the claim in prayer 2 of the interlocutory process filed on 3 October 2014, the interlocutory process be dismissed with no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 857 of 2014

BETWEEN:
ANTHONY PAVLAKIS
First Plaintiff

GAVIN JONES COMMUNICATIONS PTY LIMITED
Second Plaintiff

AND:
EQUMEN PTY LIMITED ACN 129 797 315
Defendant

JUDGE:

YATES J

DATE:

28 NOVEMBER…

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: [2014] FCA 1274
Decision Date: 6 November 2014

CaseChat Overview and Summary

Pavlakis v Equmen Pty Limited (No 3) involved a dispute concerning the correction of the defendant's register of members under section 175 of the Corporations Act 2001 (Cth). The plaintiffs sought to have the register corrected to reflect that the second plaintiff, rather than the first, was the holder of the defendant’s fully-paid ordinary shares, and to remove the name of Corie Kim Chung from the register. This case was heard in the Federal Court of Australia, which was required to determine whether the plaintiffs had the legal standing to make these corrections and whether the requested changes were justified.

The legal issues before the court included whether the plaintiffs had standing to apply for the correction of the defendant's register of members, and whether the proposed changes to the register were appropriate under section 175 of the Corporations Act 2001 (Cth). Additionally, the court needed to consider the appropriateness of the previous orders made concerning the appointment of a provisional liquidator and the termination of that appointment.

The court found that the plaintiffs had standing to apply for the correction of the register of members, and that the proposed changes were justified. The court ordered that the register be corrected to reflect the second plaintiff as the holder of all issued fully-paid ordinary shares in the defendant, and to remove the name of Corie Kim Chung from the register. The court also varied the previous order appointing David Levi as provisional liquidator, terminating his appointment as of a specified date. The amended originating process and the interlocutory process were dismissed, except for the claim in prayer 2 of the interlocutory process. The court's decision was based on the legal principles and statutory provisions relevant to the correction of a company's register of members and the appointment and termination of a provisional liquidator.

Orders

Orders of the court

1. Pursuant to s 175 of the Corporations Act 2001 (Cth) the register of members of the defendant be corrected by:

(a) removing the name of Corie Kim Chung therefrom as the holder of 25 fully‑paid ordinary shares in the defendant; and

(b) recording the second plaintiff to be the holder of 100 fully-paid ordinary shares in the defendant, currently being all the issued fully-paid ordinary shares in the defendant,

with effect from 20 May 2012.

2. Order 4 made on 20 August 2014, be varied nunc pro tunc to read:

“On the plaintiff, by his counsel giving the usual undertaking as to damages, David Levi, an official liquidator, be appointed liquidator of Equmen Pty Limited provisionally, pursuant to s 472(2) of the Corporations Act 2001 (Cth), with power to implement any order made by the Court for the correction of the defendant’s register of members and to do all other acts incidental thereto.”

3. The appointment of David Levi as provisional liquidator of the defendant be terminated as at 3.15 pm on 6 November 2014.

4. The amended originating process filed on 22 October 2014 be dismissed with no order as to costs.

5. Save for the claim in prayer 2 of the interlocutory process filed on 3 October 2014, the interlocutory process be dismissed with no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Pavlakis v Equmen Pty Limited (No 3) [2014] FCA 1274
Parties:	ANTHONY PAVLAKIS and GAVIN JONES COMMUNICATIONS PTY LIMITED v EQUMEN PTY LIMITED ACN 129 797 315
File number(s):	NSD 857 of 2014
Judge(s):	YATES J
Date of judgment:	6 November 2014
Catchwords:	CORPORATIONS - application under s 175 of the Corporations Act 2001 (Cth) for correction of defendant’s register of members
Legislation:	Corporations Act 2001 (Cth) ss 175, 436B, 437C
Cases cited:	Pavlakis v Equmen Pty Limited [2014] FCA 929 Pavlakis v Equmen Pty Ltd (No 2) [2014] FCA 951
Date of hearing:	6 November 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	13
Solicitor for the First Plaintiff:	Benjamin Nicholson Law (Ms K Nicholson appearing)
Counsel for the Second Plaintiff:	Mr R Marshall
Solicitor for the Second Plaintiff:	Benjamin Nicholson Law
The Defendant:	Did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 857 of 2014

JUDGE:	YATES J
DATE OF ORDER:	6 NOVEMBER 2014
WHERE MADE:	SYDNEY