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Perera v Reilly

Perera v Reilly

Case [2006] WASC 200 7 September 2006

Corporate Law & Governance

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PERERA -v- REILLY & ANOR [2006] WASC 200

Link to Appeal :

[2006] WASCA 275

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 200
Case No:	COR:22/2005	Heard:	17 MAY 2006
Coram:	MURRAY J	Delivered:	7/09/06
No of pages:	16	Judgment Part:	1 of 1
Result:	Judgment for plaintiff Declaration that special resolution invalid
Category:	A
PDF Version

Parties:	RUAN PERERA MARK DAVID REILLY SOUTHERN WINE CORPORATION PTY LTD (IN LIQ)
Catchwords:	Corporations Managed investment scheme Special resolution to delete voting restriction Validity of resolution Interest of responsible entity as corporation in liquidation Justiciability of validity of resolution Availability of declaration
Legislation:	Corporations Act 2001 (Cth), s 253E, s 253G, s 601FC, s 601FD
Case References:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334 Fast Scout Ltd v Bergel (2001) 25 WAR 244 McGellin v Mount King Mining NL, unreported; SCt of WA; Library No 980164; 7 April 1998 MTQ Holdings Pty Ltd v RCR Tomlinson Ltd [2006] WASC 96 Project Blue Sky Inc v ABA (1998) 194 CLR 355 Sycotex Pty Ltd v Baseler (1994) 13 ACSR 766 Walker v Wimbourne (1976) 137 CLR 1 A Caveat, In re; Ex parte Canowie Pastoral Co Ltd [1931] SASR 502 Cachia v Westpac Financial Services Ltd (2000) 170 ALR 65 Commissioner of Taxation v Linter Textiles Australia Ltd (In liq) (2005) 220 CLR 592 Lancedale Holdings Pty Ltd v Heath Group A/Asia Pty Ltd (1999) 33 ACSR 247 Paul & Gray Ltd; In re 32 SR (NSW) 386

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : PERERA -v- REILLY & ANOR [2006] WASC 200 CORAM : MURRAY J HEARD : 17 MAY 2006 DELIVERED : 7 SEPTEMBER 2006 FILE NO/S : COR 22 of 2005 BETWEEN : RUAN PERERA

Plaintiff

AND

MARK DAVID REILLY

First Defendant

SOUTHERN WINE CORPORATION PTY LTD (IN LIQ)

Second Defendant

Catchwords:

Corporations - Managed investment scheme - Special resolution to delete voting restriction - Validity of resolution - Interest of responsible entity as corporation in liquidation - Justiciability of validity of resolution - Availability of declaration

Legislation:

Corporations Act 2001 (Cth), s 253E, s 253G, s 601FC, s 601FD

(Page 2)

Result:

Judgment for plaintiff

Declaration that special resolution invalid

Category: A

Representation:

Counsel:

Plaintiff : Mr M N Solomon

First Defendant : Mr N W McKerracher QC

Second Defendant : Mr N W McKerracher QC

Solicitors:

Plaintiff : Gadens Lawyers

First Defendant : Christensen Vaughan

Second Defendant : Christensen Vaughan

Case(s) referred to in judgment(s):

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334
Fast Scout Ltd v Bergel (2001) 25 WAR 244
McGellin v Mount King Mining NL, unreported; SCt of WA; Library No 980164; 7 April 1998
MTQ Holdings Pty Ltd v RCR Tomlinson Ltd [2006] WASC 96
Project Blue Sky Inc v…

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 Perera v Reilly

Details

AGLC: Perera v Reilly [2006] WASC 200
Case: [2006] WASC 200
Decision Date

CaseChat Overview and Summary

The case of Perera v Reilly concerns a dispute between the plaintiff, Mr Ruan Perera, a unit holder in the Fernvale Unit Trust Managed Investment Scheme (FUTMIS), and the defendants, Mark David Reilly (the liquidator of Southern Wine Corporation Pty Ltd (SWC), the responsible entity of the FUTMIS) and SWC itself. Mr Perera seeks a declaration that a special resolution passed at a general meeting of unit holders on 22 December 2004, which sought to amend the Constitution of the FUTMIS by deleting a voting restriction, is invalid, as well as a declaration that any sale of units in reliance on the special resolution is invalid and/or unlawful. The central legal issue in the case is whether the special resolution, which was passed by a 75 per cent majority of votes cast at the meeting, is valid given that SWC, which holds 56 per cent of the units, was not entitled to vote on the resolution under section 253E of the Corporations Act 2001 (Cth). Murray J held that the special resolution is invalid because SWC, as a company in liquidation, had an interest in the resolution other than as a member, and thus was not entitled to vote on it under section 253E. The Court also held that the inherent jurisdiction of the Court allows for a declaration of invalidity of the special resolution, and granted such a declaration. The Court did not consider it necessary to grant the further relief sought by Mr Perera, such as an injunction preventing the sale of units or a declaration that any sale of units in reliance on the special resolution is invalid and/or unlawful.

Orders