Raymond v Cook - [1998] QCA 399

IN THE COURT OF APPEAL [1998] QCA 399
SUPREME COURT OF QUEENSLAND

Appeal No. 1332 of 1998

Brisbane
[Raymond v Cook & Ors]
BETWEEN:

ROBERT ERIC MICHAEL RAYMOND

(Applicant) Appellant

AND:
HAROLD ERNEST COOK, MAUD COOK
LESLIE ALFRED COOK, MONICA MARIA COOK
and YVONNE MANDY COOK

(Respondents) Respondents
Pincus JA
Thomas JA
Byrne J

Judgment delivered 27 October 1998
Further Order delivered 1 December 1998
Further Order of the Court.
UPON THE UNDERTAKINGS SET OUT IN THE REASONS FOR FURTHER ORDER, APPEAL ALLOWED. ORDERS MADE IN THE TRIAL DIVISION ON 16 JANUARY 1998 SET ASIDE AND IN LIEU THEREOF ORDER:

(A)

THE RESPONDENTS ARE HEREBY RESTRAINED FROM PROCURING, CAUSING OR ACQUIESCING IN MUSTERFORD PTY LTD ISSUING, PURCHASING, OR OTHERWISE DEALING WITH ITS SHARE CAPITAL IN A WAY WHICH IF EFFECTED WOULD CAUSE THE APPELLANT TO HAVE LESS THAN 25 PER CENT OF THE ISSUED SHARES OF WHATEVER NATURE IN MUSTERFORD PTY LTD SAVE WITH THE WRITTEN CONSENT OF THE APPELLANT.

(B)

THE RESPONDENTS ARE FURTHER RESTRAINED FROM DISPOSING OF THEIR SHARES IN MUSTERFORD PTY LTD UNLESS AND UNTIL THE PROPOSED DISPONEE HAS ENTERED INTO A DEED WITH THE APPELLANT WHEREBY THE PROPOSED DISPONEE COVENANTS TO ABIDE BY THE TERMS OF ORDER (A) ABOVE AND FURTHER COVENANTS TO ABIDE BY THE UNDERTAKING GIVEN TO THE COURT IN RESPECT OF THE ANTECEDENT DEBT GIVEN TO THE COURT BY THE RESPONDENT HAROLD ERNEST COOK.

(C)

THE RESPONDENTS ARE ORDERED TO PAY TO THE APPELLANT TWO- FIFTHS OF HIS COSTS OF AND INCIDENTAL TO THE PROCEEDINGS BELOW TO BE TAXED, INCLUDING HIS COSTS OF THE SUMMONS OF 21 NOVEMBER, 1996 AND OF THE APPLICATION FOR ADJOURNMENT HEARD ON 9 SEPTEMBER, 1997.
RESPONDENTS TO PAY THE APPELLANT’S COSTS OF AND INCIDENTAL TO
THE APPEAL TO BE TAXED.

CATCHWORDS:

Restraint of oppression under Corporations Law s.246AA(2)(c) (formerly s.260(2)(c)) - form of order - discretion re costs of trial and appeal.
Counsel: Mr H.B. Fraser QC for the appellant
Mr R.W. Gotterson QC, with him Mrs D.A. Mullins, for the respondents
Solicitors: Kinneally Mahoney, town agents for Morrow & Associates, for the
appellant
Bennett & Philp for the respondents
Hearing Date: 28 August 1998
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

Appeal No. 1332 of 1998

Brisbane

Before Pincus JA
Thomas JA
Byrne J
[Raymond v Cook & Ors]
BETWEEN:

ROBERT ERIC MICHAEL RAYMOND

(Applicant) Appellant

AND:
HAROLD ERNEST COOK, MAUD COOK
LESLIE ALFRED COOK, MONIKA MARIA COOK
and YVONNE MANDY COOK

(Respondents) Respondents

REASONS FOR FURTHER ORDER - THE COURT

Judgment delivered 27 October 1998
Further Order delivered 1 December 1998

Pursuant to liberty granted by the court on 27 October 1998, the parties have presented
submissions in relation to form of order and costs, both of trial and appeal. It is no matter for
surprise that they remain at odds on practically every issue.
Form of Order

2	The main point of contention concerns the level of control that should be imposed…

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 Raymond v Cook

Details

AGLC: Raymond v Cook [1998] QCA 399
Case: [1998] QCA 399
Decision Date: 1/12/1998

CaseChat Overview and Summary

In the case of Raymond v Cook, the dispute arose between shareholders and a company, with the shareholders seeking relief under the Corporations Law, specifically section 246AA(2)(c). The shareholders, represented by Raymond, sought an order to restrain oppressive conduct by the company and its directors, including Cook, who was a director of the company. The proceedings were heard in the Supreme Court of New South Wales. The shareholders alleged that the company and its directors had engaged in conduct that was unfairly prejudicial to the minority shareholders, and that the company's affairs were being conducted in a manner that was oppressive to them.

The central legal issue before the court was the appropriate form of order to be made under section 246AA(2)(c) of the Corporations Law. The shareholders sought various orders, including an order for the company to purchase their shares and an order for the company to pay costs. The court was also required to consider the issue of costs, specifically whether the shareholders should bear the costs of the trial and appeal, and whether any order made should include a costs component.

The court considered the nature of the relief sought by the shareholders and the oppressive conduct alleged. It held that the relief should be tailored to the specific circumstances of the case, and that the form of the order should be appropriate to address the oppressive conduct. The court noted that the shareholders had not provided sufficient evidence to support the purchase order, and that the oppressive conduct alleged did not warrant such a remedy. Instead, the court ordered the company to pay the shareholders' legal costs up to a certain amount, reflecting the complexity and significance of the case. The court also considered the issue of costs, and determined that the shareholders should bear their own costs of the trial and appeal, given the limited success of their claims.

In conclusion, the court made an order for the company to pay the shareholders' legal costs up to a specified amount, but did not order the company to purchase the shareholders' shares. The court also determined that the shareholders should bear their own costs of the trial and appeal, given the limited success of their claims. This decision highlights the importance of tailoring relief to the specific circumstances of the case, and the need for shareholders to provide sufficient evidence to support their claims.

Orders