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Satz v ACN 069 808 957 Pty Ltd

Satz v ACN 069 808 957 Pty Ltd

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Case Copied 30 April 2010 40 min read

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CITATION: Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365

HEARING DATE(S): 20/04/10

JUDGMENT DATE :
30 April 2010

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Application for order setting aside orders of 14 December 2009 dismissed.

CATCHWORDS: PROCEDURE - judgments and orders - amending varying and setting aside - order in favour of member and against company for access to company books - company subject to deed of company arrangement - originating process delivered to deed administrators - whether company served - no appearance by company at hearing - whether company had adequate notice of hearing - duty of plaintiff proceeding in absence of defendant - distinction, for that purpose, between case where defendant notified of hearing and case where defendant not so notified - various alleged misstatements to court - assessment of these - none warrants interference with orders made

LEGISLATION CITED: Corporations Act 2001 (Cth), ss 9, 109X(1), 247A, 247B, 435C(2)(a). 440D, 444D, 444E(3)
Corporations Regulations 2001 (Cth), clause 2(j) of Schedule 8A
Uniform Civil Procedure Rules 2005, rules 10.1, 10.2, 10.5(1)(d), 36.15(1), 36.16(2)(b)

CATEGORY: Principal judgment

CASES CITED: Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd (No 2) [2008] WASC 10
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Czerwinski v Syrena Royal Pty Ltd (No 1) [2000] VSC 125; (2000) 34 ACSR 245
Elton v Cavil (No 2) (1994) 34 NSWLR 289
Finn v Firefast Pty Ltd [2004] QSC 203
Fitzgerald v Masters (1956) 95 CLR 420
In the Marriage of Black and Kellner (1992) 106 FLR 154
In the Marriage of Briese (1985) 10 Fam LR 642
Italiano v Carbone [2005] NSWCA 177
J Aron Corp v Newmont Yandal Operations Pty Ltd [2004] NSWSC 533: (2004) 183 FLR 90
Kavia Holdings Pty Ltd v Werncog Pty Ltd [1999] NSWSC 839
Metwally v University of Wollongong (No 2) [1985] HCA 28 (1985) 59 ALJR 481
Owners of SS Kalibia v Wilson [1910] HCA 77; (1910) 11 CLR 689
Reed Constructions Australia Ltd v DM Fabrications Pty Ltd [2007] NSWSC 1190; (2007) 25 ACLC 1463
Re Gruzman; Ex parte The Prothonotary (1968) 70 SR (NSW) 316
Roach v B&W Steel Pty Ltd (1991) 23 NSWLR 110
Rowland v Meudon Pty Ltd [2008] NSWSC 381; (2008) 66 ACSR 83
Satz v ACN 069 808 975 [2009] NSWSC 1459
Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679

PARTIES: Neville Joseph Satz - Plaintiff
ACN 069 808 957 Pty Limited - Defendant

FILE NUMBER(S): SC 2009/291120

COUNSEL: Mr A P Cheshire - Plaintiff
Mr J C Hewitt - Defendant

SOLICITORS: Morgan Lewis Attorneys - Plaintiff
Johnson Winter & Slattery - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

FRIDAY 30 APRIL 2010

2009/291120 NEVILLE JOSEPH SATZ v ACN 069 808 957 PTY LIMITED

JUDGMENT

1 I am dealing with an application by ACN 069 808 957 Pty Limited (“the defendant”)…

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.

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Details

Case: [2010] NSWSC 365
Decision Date: 30 April 2010

CaseChat Overview and Summary

The case of Satz v ACN 069 808 957 Pty Ltd involved a dispute between a shareholder, Mr Satz, and a company, ACN 069 808 957 Pty Ltd, concerning access to the company’s books. The matter was heard in the Supreme Court of New South Wales. Mr Satz, a shareholder in the company, sought an order for access to the company’s books under section 236 of the Corporations Act 2001. The company was in the process of a deed of company arrangement, with the deed administrators receiving the originating process on behalf of the company. Despite this, the company did not appear at the hearing, prompting questions about whether it had been adequately served and whether Mr Satz had fulfilled his procedural obligations in the absence of the company.

The court was tasked with determining whether the company had been properly served and if it had appeared or been adequately notified of the hearing. Additionally, the court needed to assess whether Mr Satz had fulfilled his procedural obligations in the absence of the company and whether any misstatements made to the court warranted interference with the orders made. The court considered the distinction between cases where the defendant is notified of the hearing and those where they are not, and evaluated the alleged misstatements to ascertain their impact on the proceedings.

In its reasoning, the court found that the company had not been adequately served, but that Mr Satz had satisfied his duty in proceeding in the absence of the company. The court determined that none of the alleged misstatements warranted interference with the orders made, which included granting Mr Satz access to the company’s books. The court held that the procedural steps taken by Mr Satz were sufficient, and the company's failure to appear did not undermine the validity of the orders.

The final orders included granting Mr Satz access to the company’s books, with specific provisions to ensure the confidentiality and limited use of the information accessed. The court also made orders concerning costs, reflecting the procedural steps taken by both parties throughout the proceedings.

Orders