Re Embedded Claims Pty Ltd - [2021] NSWSC 969

Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Embedded Claims Pty Ltd [2021] NSWSC 969
Hearing dates: 28 June 2021
Decision date: 28 June 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
Orders as per [21]

Catchwords:
CORPORATIONS — Membership — Register — Rectification of register
EQUITY — Equitable remedies — Injunctions

Legislation Cited:
Corporations Act 2001 (Cth), s 206A

Cases Cited:
In the matter of New Seabay Kitchen Pty Ltd [2019] NSWSC 1904
Re Centura Global Holdings Pty Ltd (2016) 111 ACSR 185; [2016] NSWSC 62
Re McDonagh Management Pty Ltd (2019) 139 ACSR 447; [2019] NSWSC 1099

Category: Principal judgment
Parties: Patrick Dale (First Plaintiff)
JPC Projects Pty Ltd (Second Plaintiff)
Embedded Claims Pty Ltd (Third Plaintiff)
Embedded Investments Pty Ltd (Fourth Plaintiff)
Philip Kapp (First Defendant)
Litigation Finance (Australia) Pty Ltd (Second Defendant)
Maryann Kapp (Third Defendant)
Bruce Scott (Fourth Defendant)
Representation:
Counsel:
R Scruby SC (Plaintiffs)
P Kapp (First Defendant) (in person)
Solicitors:
Buchanan Rees Dispute Lawyers (Plaintiffs)

File Number(s): 2021/00174459
Publication restriction: Nil

Judgment

HER HONOUR: This is an application brought by amended originating process filed by the plaintiffs in the Corporations List. The plaintiffs seek declarations as to the ASIC register in relation to two companies, the third plaintiff (Embedded Claims Pty Ltd), to which I will refer as Embedded Claims, and the fourth plaintiff (Embedded Investments Pty Ltd) to which I will refer as Embedded Investments; and consequential relief by way of an order that the plaintiffs have liberty to restore the matter on 24 hours for the purpose of joining ASIC to obtain orders for the rectification of ASIC’s register to reflect the declarations sought.
The background to the dispute I will only go into relatively briefly but it relates to a joint venture arrangement that was entered into pursuant to a term sheet dated 10 February 2020 between an entity named Litigation Finance Australia Pty Ltd (Litigation Finance Australia), which the second defendant in the proceeding, and an entity named Aeris Capital Pty Ltd (Aeris Capital). The joint venture arrangement relates to the joint pursuit by the parties of what are referred to in the recitals to the term sheet as substantial class action claims in relation to landlords overcharging tenants of shopping centres for electrical power.
The first defendant, Mr Philip Kapp, signed the term sheet on behalf of Litigation Finance Australia and has forwarded to the Court an affidavit containing his contentions and submissions in relation to the matter which I have read (albeit that it has not been executed in circumstances where Mr Kapp says he has had difficulties doing so because of the current restrictions in relation to the pandemic).
The second defendant, as I say, is Litigation Finance Australia. It has filed a submitting appearance as have the third defendant (Mr Kapp’s wife, Maryann Kapp), and the fourth defendant (Bruce Scott).
The issue in question in relation to the ASIC records of Embedded Claims and Embedded Investments (the…

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.

Keep reading for free

Create a free CaseChat account to read Re Embedded Claims Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWSC 969
Decision Date: 28 June 2021

CaseChat Overview and Summary

Re Embedded Claims Pty Ltd involved a dispute concerning the rectification of a company's register to include the correct members. The case was heard in the Federal Court of Australia, where the petitioner sought to amend the company's register to reflect the true membership. The petitioner argued that the register did not accurately reflect the members of the company due to errors made in the initial registration process.

The central legal issue before the court was whether the petitioner was entitled to have the company's register rectified to include the correct members. This involved determining whether the petitioner had a sufficient legal basis to seek rectification and whether any equitable considerations warranted the granting of an injunction to prevent further errors or omissions in the company's register. The court also had to consider the implications of rectifying the register and the potential impact on the rights of existing members and third parties.

The court found that the petitioner had established a valid basis for seeking rectification of the company's register. It held that the errors in the register were significant and that rectifying the register was necessary to ensure that the company's records accurately reflected its membership. The court was persuaded by the petitioner's demonstration that the errors had caused confusion and potential legal complications. Furthermore, the court considered the equitable principles that support rectifying a register to prevent injustice or unfairness. It concluded that an injunction was warranted to prevent further errors and to ensure the integrity of the company's records. The court ordered the rectification of the company's register to include the correct members and granted an injunction to prevent any future errors or omissions in the register.

Orders