SIGMA X-RAY FLUX PTY LTD & ANOR -v- EVANS & ANOR [2002] WASC 136

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 136
Case No:	COR:427/2001	Heard:	23 MAY 2002
Coram:	MASTER SANDERSON	Delivered:	31/05/02
No of pages:	7	Judgment Part:	1 of 1
Result:	Application to set aside order made ex parte dismissed
Category:	B
PDF Version

Parties:	SIGMA X-RAY FLUX PTY LTD (ACN 097 789 187) D & G D BROWN NOMINEES PTY LTD (ACN 008 793 299) GRAHAM JUSTIN SHANN EVANS SIGMA CHEMICALS (1986) PTY LTD (ACN 006 550 161)
Catchwords:	Corporations Act Application to set aside order made allowing member to take action in the name of the company Company register not completed and company taking no steps to issue shares Whether applicant a member of company
Legislation:	Corporations Act, s 117, s 120(2), s 169, s 236(1)(a)(i), s 237
Case References:	Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561 Re Reid Murray Acceptance Ltd [1964] VR 82 Burton v President of the Shire of Bairnsdale (1908) 7 CLR 76 Forkserve Pty Ltd v Jack [2000] NSWSC 1064 Foss v Harbottle (1843) 67 ER 189 Knight v Bulic (1994) 13 ACSR 553 Michael v Nicholson, unreported; SCt of WA; Library No 950660; 1 December 1995 Thomas A Edison Ltd v Bullock (1913) 15 CLR 679

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SIGMA X-RAY FLUX PTY LTD & ANOR -v- EVANS & ANOR [2002] WASC 136 CORAM : MASTER SANDERSON HEARD : 23 MAY 2002 DELIVERED : 31 MAY 2002 FILE NO/S : COR 427 of 2001 BETWEEN : SIGMA X-RAY FLUX PTY LTD (ACN 097 789 187)

First Plaintiff

D & G D BROWN NOMINEES PTY LTD (ACN 008 793 299)

Second Plaintiff

AND

GRAHAM JUSTIN SHANN EVANS

First Defendant

SIGMA CHEMICALS (1986) PTY LTD (ACN 006 550 161)

Second Defendant

Catchwords:

Corporations Act - Application to set aside order made allowing member to take action in the name of the company - Company register not completed and company taking no steps to issue shares - Whether applicant a member of company

(Page 2)

Legislation:

Corporations Act, s 117, s 120(2), s 169, s 236(1)(a)(i), s 237

Result:

Application to set aside order made ex parte dismissed

Category: B

Representation:

Counsel:

First Plaintiff : Mr G T Bigmore QC & Mr S K Shepherd

Second Plaintiff : Mr G T Bigmore QC & Mr S K Shepherd

First Defendant : Mr S J Penrose

Second Defendant : Mr S J Penrose

Solicitors:

First Plaintiff : Mallesons Stephen Jaques

Second Plaintiff : Mallesons Stephen Jaques

First Defendant : Tottle Christensen

Second Defendant : Tottle Christensen

Case(s) referred to in judgment(s):

Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561
Re Reid Murray Acceptance Ltd [1964] VR 82

Case(s) also cited:

Burton v President of the Shire of Bairnsdale (1908) 7 CLR 76
Forkserve Pty Ltd v Jack [2000] NSWSC 1064
Foss v Harbottle (1843)…

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 Sigma X-ray Flux Pty Ltd v Evans 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: [2002] WASC 136
Decision Date

CaseChat Overview and Summary

Sigma X-Ray Flux Pty Ltd and D & G D Brown Nominees Pty Ltd (the plaintiffs) commenced proceedings against Graham Justin Shann Evans and Sigma Chemicals (1986) Pty Ltd (the defendants) seeking to enforce an alleged settlement agreement. The defendants sought to set aside an order granting leave to the second plaintiff to bring proceedings in the name of the first plaintiff. The defendants argued that the order was made without jurisdiction because the second plaintiff was not a member of the first plaintiff at the time the order was made. The plaintiffs argued that the defendants' application to set aside the order was misconceived and should have been brought in the proceedings in which leave was granted. Nonetheless, the plaintiffs conceded that the issue could be resolved in these proceedings.

The court held that the order made ex parte could be set aside if there was no jurisdiction to make the order. The court noted that if the second plaintiff was not a member of the first plaintiff at the time the order was made, then there was no jurisdiction to make the order. The court considered the legislative provisions found in Pt 2A.2 of the Corporations Act and held that the second plaintiff was a member of the first plaintiff as at the date the order was made. The court held that the shares to be taken up by the members specified in the application are taken to be issued to the members on registration of the company. The court held that there was no basis upon which the order could be set aside.

The court dismissed the defendants' application and ordered that the defendants pay the plaintiffs' costs of the application, including the reserved costs.

Orders