Re Buckleys Earthmoving Pty Ltd - [1995] QSC 6

IN THE SUPREME COURT

OF QUEENSLAND

No. 18 of 1992

Brisbane

Before the Honourable Justice G N Williams

[Re Buckleys Earthmoving Pty Ltd]

IN THE MATTER of the Corporations Law s. 516

AND:

IN THE MATTER of BUCKLEYS EARTHMOVING PTY LTD (In Liquidation) ACN 010 720 680

AND:

IN THE MATTER of The Corporations Regulations Regulation 5.6.62

JUDGMENT - WILLIAMS J

Judgment delivered 08/02/1995

CATCHWORDS COMPANY LAW - appeal against names being placed on list of contributories - whether resolutions increased share capital - whether new shares "created" - meaning of "issue" and "allot" considered - failure of persons at meeting and advisers to follow proper procedures - appeal allowed

Counsel:Bell QC and Sweeney for appellants
Hanger QC and McKenna for liquidators
Jackson QC for solicitors - respondents

Solicitors:Flehr-Walker for appellants
Andrew P Abaza for liquidators
Corrs Chambers Westgarth for solicitors - respondents

Hearing dates: 14, 15 and 16 November 1994

IN THE SUPREME COURT

OF QUEENSLAND

No. 18 of 1992
IN THE MATTER of the Corporations Law s. 516

AND:

IN THE MATTER of BUCKLEYS EARTHMOVING PTY LTD (In Liquidation) ACN 010 720 680

AND:

IN THE MATTER of The Corporations Regulations Regulation 5.6.62

JUDGMENT - WILLIAMS J

Judgment delivered 08/02/1995

Buckleys Earthmoving Pty Ltd ("the company") was ordered to be wound up by order of this Court made on 10 February 1992. In the course of carrying out their duties the liquidators settled a list of contributories which, prima facie, showed the appellants (Quantic Pty Ltd, Keendeck Pty Ltd, Coleenie Pty Ltd, Marjorie Joyce Moore, and Raymond Robert Moore) as being liable to pay a considerable sum of money as contributories not having fully paid for their shares. (G and N Williamson were at all times shareholders and directors of Quantic Pty Ltd, G F Gardner the principal director and shareholder of Keendeck Pty Ltd, and G J Brandon and J E Kurtz directors and shareholders of Coleenie Pty Ltd). The appellants have appealed pursuant to Regulation 5.6.62 against their inclusion on that list and I am called upon to determine de novo whether it is appropriate for them to be so placed on that list.
It would be an understatement, as will become obvious on a reading of these reasons, to say that the affairs of the company from May 1990 to liquidation were in a real mess. There are a number of actions currently before this Court resulting from events which occurred between May 1990 and the date of the winding up. The acquisition by the appellants of a majority shareholding in the company in 1990 is relevant to most, if not all, of that litigation. This appeal raises for determination when and on what terms the appellants acquired that shareholding.
In some of the other litigation the appellants here have alleged that their legal and accounting advisers in connection with the acquisition of that shareholding were negligent and they have claimed damages from those advisers to compensate them for any relevant…

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 Re Buckleys Earthmoving Pty Ltd

Details

AGLC: Re Buckleys Earthmoving Pty Ltd [1995] QSC 6
Case: [1995] QSC 6
Decision Date: 8 February 1995

CaseChat Overview and Summary

The case of Re Buckleys Earthmoving Pty Ltd involved an appeal against the inclusion of certain parties on a list of contributories, specifically as to whether these parties were liable to pay for shares they were deemed to hold. The appellants, including Quantic Pty Ltd, Keendeck Pty Ltd, Coleenie Pty Ltd, and individual shareholders, contested their liability as contributories for shares they were alleged to hold in Buckleys Earthmoving Pty Ltd, a company that had been wound up. The core legal issues revolved around whether the resolutions passed at meetings in May and September 1990 had the effect of increasing the company's share capital, issuing new shares, and whether the appellants were estopped from denying their shareholding status. Justice Williams concluded that the resolutions of May 1990 did not increase the company's share capital or validly create new shares. The resolutions were ambiguous and not understood by the parties involved, leading to confusion over the share structure. The resolutions of September 1990, however, were effective in increasing the company's capital and creating new shares. The appellants were thus not liable for the $0.50 shares claimed by the liquidators but were liable for $2.5 cent shares under the September resolutions. The court allowed the appeal, finding that the appellants were not contributories for the $0.50 shares, and the matter of their liability for the $2.5 cent shares was left for further submissions.

Orders