Sharpe v Grobbel - [2017] NSWSC 2

Supreme Court

New South Wales

Medium Neutral Citation: Sharpe v Grobbel [2017] NSWSC 2
Hearing dates: 3 January 2017
Decision date: 09 January 2017
Jurisdiction: Equity
Before: Robb J
Decision:
See pars 201- 206

Catchwords: PRACTICE AND PROCEDURE – claim by plaintiffs for extension of interlocutory injunction – held interlocutory injunction should not be extended because the balance of convenience does not favour the extension – plaintiffs had established serious question to be tried in relation to their claims for relief – no question of principle
Legislation Cited: Corporations Act 2001 (Cth)
Cases Cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 198; [2001] HCA 63
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
Category: Procedural and other rulings
Parties: Frederick Patrick Sharpe (first plaintiff)
Joel Francis Fleming (second plaintiff)
Christoph Grobbel (first defendant)
Renat Heuberger (second defendant)
South Pole Holdings (third defendant)
Representation:
Counsel: G Parker SC (first and second plaintiffs)
J Giles SC/AJ Byrne (first, second and third defendants)
Solicitors: Garland Hawthorn Brahe (plaintiffs)
Dentons Australia (defendants)

File Number(s): 2016/384961
Publication restriction: None

Judgment

Issue

The question before the court is whether an interlocutory order made by Slattery J on 22 December 2016 should be extended, and if so on what terms.

Parties and other relevant entities

The plaintiffs, Mr Frederick Patrick Sharpe and Mr Joel Francis Fleming, are two of the directors of a company called Climate Friendly Pty Ltd (Climate Friendly).
The first and second defendants, Dr Grobbel and Mr Heuberger, are the other two directors of Climate Friendly. They are both residents of Switzerland.
The third defendant is South Pole Holding Ltd (South Pole), which is a company incorporated in Switzerland. South Pole is the majority shareholder in Climate Friendly (63.4%). Dr Grobbel is the CFO and Chairman of South Pole and Mr Heuberger is its CEO.
Climate Friendly itself has not been joined as a party to the proceedings.
Mr Sharpe is associated with a company called Sachil Investments Pty Ltd (Sachil), which holds 14.9% of the shares in Climate Friendly.
Mr Fleming is associated with a company called Biosoft Pty Ltd (Biosoft), which holds 17.6% of the shares in Climate Friendly.
Neither Sachil nor Biosoft has been joined as a party to the proceedings.
In addition, there are four further shareholders, who have also not been joined as parties. Together, they hold a total of 4.15% of the shares in Climate Friendly.

Business of Climate Friendly

There is evidence that Climate Friendly conducts three distinct businesses. The first is the retailing of carbon credits to corporate clients domestically and internationally (the VER business). The second is the provision of renewable energy solutions to corporate clients domestically and internationally (RECs business). The third is the development of land-based carbon projects within Australia (variously called the NCF business, the CFI business, or the ERF business).
It will be convenient to mention that this case, in part, concerns a proposal that Climate Friendly sell the first…

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.

Continue reading Sharpe v Grobbel

Details

AGLC: Sharpe v Grobbel [2017] NSWSC 2
Case: [2017] NSWSC 2
Decision Date: 09 January 2017

CaseChat Overview and Summary

The case of Sharpe v Grobbel was heard by the Federal Court of Australia. The plaintiffs, represented by Sharpe, sought an extension of an interlocutory injunction against the defendants, including Grobbel. The plaintiffs sought to prevent the defendants from proceeding with certain actions that the plaintiffs argued would cause them irreparable harm. The central issue before the court was whether the interlocutory injunction should be extended beyond its current expiration date.

The court was required to weigh the balance of convenience in deciding whether to extend the interlocutory injunction. The plaintiffs had to demonstrate that the balance of convenience favoured an extension, given that the defendants had a legitimate interest in proceeding with their actions. The court had to consider whether the plaintiffs had established a serious question to be tried in relation to their claims for relief. Additionally, the court had to determine if there were any questions of principle that would affect the decision.

The court found that, although the plaintiffs had established a serious question to be tried in relation to their claims, the balance of convenience did not favour the extension of the interlocutory injunction. The court determined that the plaintiffs had not demonstrated that the potential harm to them if the injunction were not extended outweighed the harm that would be caused to the defendants if the injunction were extended. The court held that there were no questions of principle that would affect the decision. Consequently, the court declined to extend the interlocutory injunction.

Orders