Rulla Bakri v Fulvio Gobeo and Sam Gobeo
[2013] ACTSC 29
•11 February 2013
RULLA BAKRI v FULVIO GOBEO & SAM GOBEO
[2013] ACTSC 29 (11 February 2013)
EQUITY – Application for Interlocutory Injunction – Shareholders agreement and Board meeting – Injunction restraining holding of board meeting, provision of information and restraining interference with plaintiff as director, shareholder, employee – No suggestion plaintiff opposes provision of information – No reason directors meeting cannot be held in relation to provision of information – Whether arguable case in relation to injunction restraining interference – Interpretation of shareholders agreement and allegations of mismanagement, misappropriation – A serious issue to be tried exists – Whether balance of convenience favours granting the injunction – Arguable case of breach of shareholders agreement – Personal undertaking as to damages provided– Balance of convenience favours granting injunction – Application granted in part
EX TEMPORE JUDGMENT
No. SC 44 of 2013
Judge: Burns J
Supreme Court of the ACT
Date: 11 February 2013
IN THE SUPREME COURT OF THE )
) No. SC 44 of 2013
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:RULLA BAKRI
Plaintiff
AND:FULVIO GOBEO
First Defendant
SAM GOBEO
Second Defendant
ORDER
Judge: Burns J
Date: 11 February 2013
Place: Canberra
THE COURT ORDERS THAT:
- Until further order of the Court, Fulvio Gobeo and Sam Gobeo are restrained individually or jointly from:
a. interfering with or removing Rulla Bakri as a shareholder, director or employee of the company, CMC Management Pty Ltd; and
b. interfering with or removing Rulla Bakri from conducting the day to day management of the business known as Capital Men’s Club conducted at premises 84 to 86 Gladstone Street, Fyshwick in the Australian Capital Territory.
- The parties have leave to relist the matter on 24 hours’ notice.
The plaintiff and the first defendant are directors of a company, CMC Management Pty Ltd, which conducts a business at Fyshwick in the Australian Capital Territory. That business is a business of a bar, and is largely a cash business. The second defendant is a shareholder in the company.
It is clear that for some time the relationship between the directors has deteriorated, to the extent that there is not a good working relationship between the plaintiff and the first and second defendants.
There is a shareholder agreement, which is a collateral agreement which was executed by the parties. I will not incorporate into these short reasons the terms of the shareholders agreement. I note that there is a dispute as to the final form of the agreement as executed by the parties. That is an issue that will need to be resolved in any proceedings for final orders.
There are mutual allegations of mismanagement and potential misappropriation of funds made by each of the warring parties, that being the plaintiff as opposed to the first and second defendants.
There is a mediation which is due to take place on 27 February this year. Many of those matters which are referred to by the first and second defendants in their affidavits as complaints made against the plaintiff are matters that have clearly been known by the first and second defendants for some time.
The orders which the plaintiff seeks are firstly orders that the holding of a directors meeting of the company requested by the first defendant on behalf of himself and the second defendant for 2 pm today be restrained until further order.
The second order which is sought is that until further order the first and second defendants be restrained individually or jointly from interfering with or removing the plaintiff as a shareholder, director or employee, or from conducting the day to day management of the business, known as the Capital Men’s Club, conducted at the premises in Fyshwick.
In order to justify the granting of an interim injunction, the court must be satisfied that there is an arguable case on the part of the plaintiff, and also that the balance of convenience favours the granting of the injunction.
As has been pointed out by Mr Arthur, who appears on behalf of the first and second defendants, there really appears to be no suggestion by the plaintiff that the provision of information by her is opposed.
As such, there would be no reason why a directors meeting should not be held, supposing that it were to be confined to those matters which are set out as resolutions 4, 5, 6 and 7 of the Notice of Extraordinary Board Meeting dated 31 January this year.
As such, even if I am satisfied that the plaintiff has an arguable case with respect to the allegation of potential breach of the shareholders agreement, the balance of convenience would not favour the first order that is sought by the plaintiff.
I am satisfied that it is arguable that the shareholders agreement is enforceable as an agreement by the shareholder parties to it to act in a particular way in voting with respect to those matters governed by the agreement. There is also an arguable case that if the first and second defendant were to vote in favour of proposed resolutions 1, 2 and 3 set out in the Notice of Extraordinary Board Meeting that would constitute a breach on their part of the shareholders agreement.
Mr Arthur has taken me to a number of cases dealing with the question of whether it is appropriate to restrain amendment to articles of association due to the fact that there are statutory powers which govern such actions. It is not at all clear to me at the present time that those cases have any real application to the present circumstances.
I am satisfied that the plaintiff has an arguable case with respect to the potential breach of the shareholders agreement if the first defendant uses his casting vote as Chairman of the Board to vote in favour of the proposed resolutions to which I have referred.
I am satisfied that the balance of convenience lies in granting an injunction to restrain the first and second defendants from acting in that way.
Now, I note that the plaintiff has provided an undertaking as to damages. She has also indicated a willingness to give an undertaking to provide certain information. However, whether it is necessary or desirable for the Court to take such an undertaking in circumstances where the company itself will be able to require information to be provided by the plaintiff is not clear.
Upon the undertaking as to damages being given by the plaintiff, I order that until further order, Fulvio Gobeo and Sam Gobeo be restrained individually or jointly from interfering with or removing Rulla Bakri as a shareholder, director or employee of the company, CMC Management Pty Ltd.
They also be restrained from interfering with or removing Rulla Bakri from conducting the day to day management of the business known as Capital Men’s Club conducted at premises 84 to 86 Gladstone Street, Fyshwick in the Australian Capital Territory.
Returning to the question of whether it’s appropriate for the undertaking in terms of the provision of information to be provided, or whether that should be best dealt with by way of the company. Mr Arthur for the defendants submitted that the provision of information is best left to the company and the defendants do not press that undertaking. Accordingly, the undertaking will not be taken by the Court and it is left to the company to request provision of the required information.
The parties may relist the matter on 24 hours’ notice.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 25 February 2013
Counsel for the Plaintiff: Mr R Vivekananda
Solicitor for the Plaintiff: Chamberlains Law Firm
Counsel for the Defendant: Mr R Arthur
Solicitor for the Defendant: Prail Lawyers
Date of Hearing: 11 February 2013
Date of Judgment: 11 February 2013
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