Rose v Antah Holdings Berhad

[2002] VSC 200

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5026 of 2002

JOHN ALBERT ROSE	Plaintiff
v
ANTAH HOLDINGS BERHAD AND OTHERS (ACCORDING TO THE ATTACHED SCHEDULE)	Defendants

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JUDGE:	BEACH J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 MAY 2002
DATE OF JUDGMENT:	20 MAY 2002
MEDIUM NEUTRAL CITATION:	[2002] VSC 200

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CATCHWORDS:      Interlocutory injunction.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Keen	Minter Ellison
For the Defendants	Mr D. Currao	Hunt & Hunt

HIS HONOUR:

1. Since this matter was last before me, I have considered what, if any, further orders should be made to protect the interests of the plaintiff pending the hearing and determination of the proceeding.

1. It is convenient to do so by reference to the draft order prepared by the solicitor for the plaintiff.

1. I note in the first place the undertakings the parties have given to the Court as set out under the heading "Other Matters" in the proposed order, including the undertaking by Hunt & Hunt to abide by any order of the Court in relation to the sum of $1,633,687.32, together with interest accruing from the 16 August 2001, paid by or on behalf of or at the direction of the first defendant or the second defendant to Hunt & Hunt and deposited by Hunt & Hunt into the National Australia Bank account 083-091 49-359-7481 under the control of Hunt & Hunt.

1. It is agreed by the parties that the order set out in paragraph 1 of the proposed orders be made.

1. Accordingly, I order that until the trial or earlier determination of this proceeding or further order, each of Antah Holdings Berhad and Antah Pacific Holdings SDN BHD, the first and second defendants, whether by themselves or by their employees, agents, attorneys or any of them or otherwise, be restrained from disposing of, transferring or dealing with in any manner whatsoever the sum of $1,633,687.32, together with interest accruing from 16 August 2001, paid by or on behalf of or at the direction of the first defendant or the second defendant to Hunt & Hunt and deposited by Hunt & Hunt into the National Australia Bank account number 083-091 49-359-7481 under the control of Hunt & Hunt.

1. In view of the undertaking given by Hunt & Hunt concerning the said sum of $1,633,687.32, I consider that it is unnecessary to make any order restraining it from disposing of, transferring or otherwise dealing with the said sum other than an order that until further order the said sum remain in National Australia Bank account number 083-091 49-359-7481 under the control of Hunt & Hunt.

1. In my opinion, there is a real risk that the first and second defendants may seek to nullify the powers of the present three directors of Euratech Limited by seeking to remove them as directors or appointing a sufficient number of new directors to the board of that company to outvote them.

1. Accordingly, I order that until the trial or earlier determination of this proceeding or further order, each of Antah Holdings Berhad and Antah Pacific Holdings SDN BHD, the first and second defendants, whether by themselves or by their employees, agents, attorneys or any of them or otherwise be restrained from:

(a)removing or replacing the plaintiff, Clive Wright or Alec McKenzie as directors of Euratech Limited (now called ACN 066 782 536 Ltd.);

(b)      appointing any other person as a director of Euratech Limited.

1. I refer the plaintiff's application for discovery pursuant to rule 29.07 to a Master of the Court for hearing and determination.

1. I order that the plaintiff deliver his statement of claim within 21 days of the hearing and determination of the application for discovery.

1. I have considered the question of the costs of the day of 18 April 2002, which I previously reserved.  In my opinion, there is no sound basis for ordering that the plaintiff pay the defendants' costs of that day.  In my view, it was necessary that both parties appear before the Court that day.  Those costs, therefore, will continue to be reserved.

1. I reserve to the parties liberty to apply. 

1. I reserve the costs of the present application.

1. I direct that this order be drawn up by the plaintiff's solicitors and be signed by a Judge pursuant to rule 60.04(1) of the Rules of Court.

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