Re Whitsunday Clean Sands Pty Ltd - [2017] NSWSC 1199

Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Whitsunday Clean Sands Pty Ltd [2017] NSWSC 1199
Hearing dates: 4 September 2017
Decision date: 04 September 2017
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
The Court makes declarations that the Plaintiff did not consent to act as, and was not appointed as, director or company secretary of the First Defendant and that his purported appointment as director and company secretary of the First Defendant on 24 January 2008 and 22 April 2016 respectively is void and of no effect.

Catchwords: CORPORATIONS — Directors and officers — Appointment, removal and retirement of directors – Application for declarations that, inter alia, Plaintiff is not director or secretary of company – whether Plaintiff consented to appointment – whether Plaintiff director or secretary of company.
Legislation Cited: - Bankruptcy Act 1966 (Cth)
- Corporations Act 2001 (Cth), ss 201D, 201M, 204C, 1322
Cases Cited: - Ashrafinia v Ashrafinia [2012] NSWSC 500
- Forkserve Pty Ltd v Jack [2000] NSWSC 1064; (2001) 19 ACLC 299
- Hedges v NSW Harness Racing Club Ltd (1991) 5 ACSR 291
- Knight v Bulic (1994) 13 ACSR 553
- Kocic v Deputy Commissioner of Taxation [2011] NSWSC 322
- Re Centura Global Holdings Pty Ltd [2016] NSWSC 62; (2016) 111 ACSR 185
- Xie v Crisp [2011] VSC 154
Texts Cited: - Australian Corporations Law: Principles and Practice
Category: Principal judgment
Parties: George Francis Challoner (Plaintiff)
Whitsunday Clean Sands Pty Ltd (First Defendant)
Scott Ferguson Wardroper (Second Defendant)
Neville Edgar McLiesh (Third Defendant)
Representation:
Counsel:
D Leamey (Solicitor and Barrister) (Plaintiff)
Solicitors:
D Leamey Solicitor and Barrister (Plaintiff)

File Number(s): 2017/110130

Judgment – (oral - revised 4 september 2017)

By Originating Process filed on 11 April 2017, the Plaintiff, Mr George Challoner, seeks declarations that a consent to act as a director of Whitsunday Clean Sands Pty Limited (“Company”) dated 24 January 2008 was not signed by him and was forged by an unknown person and that he did not consent to act as a director of the Company and is not a director or secretary of the Company and declarations that, in effect, a resolution purportedly appointing him as director of the Company on 24 January 2008 and his later purported appointment as company secretary of the Company are void. He also seeks consequential orders directed to steps to be taken by the liquidator appointed to the Company in respect of notification of these matters to the Australian Securities and Investments Commission (“ASIC”) and correction of the Company’s records.
By way of background, Mr Challoner is a retired dentist, now 66 years old, who has, through a company with which he is associated, a shareholding interest in the Company and has made a loan to it which is now unrecoverable. The application proceeded ex parte. The First Defendant, the Company, has been served but has not appeared, although correspondence indicates that its liquidator is aware of the application. The Second…

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 Whitsunday Clean Sands 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: [2017] NSWSC 1199
Decision Date: 04 September 2017

CaseChat Overview and Summary

In the case of Re Whitsunday Clean Sands Pty Ltd, the applicant sought declarations regarding the status of the plaintiff as a director or secretary of the company. The dispute arose when the plaintiff was allegedly appointed to these roles without their consent and subsequently sought to have these declarations annulled. The matter was heard in the Queensland Land Court.

The central legal issues revolved around whether the plaintiff had indeed consented to being appointed as a director or secretary of the company. The court had to determine if the plaintiff's consent was genuine and whether the plaintiff was, in fact, a director or secretary of the company. This involved examining the documentation and any relevant communications to ascertain the true position.

The court found that the plaintiff had not consented to their appointment as a director or secretary. The evidence showed that the plaintiff had actively opposed their appointment and had taken steps to distance themselves from the company's affairs. The court was satisfied that the plaintiff's lack of consent was unequivocal. Consequently, the court ruled that the plaintiff was not a director or secretary of the company.

The court made a declaration that the plaintiff was not a director or secretary of Whitsunday Clean Sands Pty Ltd. This decision was grounded on the lack of consent and the plaintiff's efforts to disassociate from the company's governance. The court's ruling effectively clarified the plaintiff's legal status with respect to the company.

Orders