Sipad Holding ddpo v Popovic - [1995] FCA 890

CORPORATIONS - register of members - error or defect - person whose name has never been on register cannot be proved to be a member - whether name of member must be recorded exactly - enough to sufficiently approximate the correct name to identify the person - rectification available ex abundanti cautela - Corporations Law s 212.

CORPORATIONS - management and administration - appointment of representative - whether appointment to act at any general meeting of the company valid as an appointment for "specified" meetings - Corporations Law s 249(3).

CORPORATIONS - management and administration - meetings - failure of quorum a procedural irregularity - Corporations Law s 1322(2).

CORPORATIONS - management and administration - articles of association - quorum for general meeting - provision requiring the impossible - whether valid general meeting possible.

CORPORATIONS - management and administration - articles of association - alteration by special resolution - Corporations Law s 176 - no other means of altering articles of association provided for.

CORPORATIONS - dealings with issued shares - transfer of shares - transfer by operation of law - Companies (NSW) Code s 183(2).

CORPORATIONS - management and administration - appointment of representative - whether void - appointment may be cured as a procedural irregularity under Corporations Law s 1322(2) - whether the appointment of a representative a proceeding under this Law - both a general meeting of the company and the appointment of a representative a proceeding under this Law.

CORPORATIONS - management and administration - meetings - appointment of proxies - whether validly appointed - whether appointment under articles to vote at any ordinary or extraordinary general meeting of the company effective - appointment valid.

INTERPRETATION OF INSTRUMENTS - admissibility of extrinsic evidence in relation to instruments - where meaning of provision ambiguous or obscure - explanatory memorandum and second reading speech used - meaning of s 249(3) of the Corporations Law.

PRIVATE INTERNATIONAL LAW - general principles - laws relating to status - transfer of assets and assumption of liabilities under Yugoslavian law - our rules of private international law applied to recognise and give effect to the transfer.

Corporations Law s 176, s 184, s 212, s 247(3), s 249(3), s 250(3), s 253(4), s 1322(2)
Acts Interpretation Act 1901 (Cth) s 15AB
Companies (NSW) Code s 183(2), s 244(3), s 259

Standard Portland Cement Co. Pty Ltd v Good (1982) 47 ALR 107 (PC) at 112 applied
National Bank of Greece and Athens SA v Metliss [1958] AC 509 at 525 applied
Donrob Enterprises Pty Ltd v Queensland Petroleum Management Ltd (1988) 14 ACLR 307 applied
Maddocks v DJE Constructions Pty Ltd (1982) 148 CLR 104 at 117 applied
TCN Channel Nine Pty Ltd v Australian Mutual Providence Society (1982) 42 ALR 496 considered
Issac v Chapman (1915) 32 TLR 183 applied
Re Pembury Pty Ltd (1991) 4 ACSR 759 applied
Brain v Judo Federation of Australia (1994) 15 ACSR 708 applied

SIPAD HOLDING d.d.p.o. & Anor v NIKOLA POPOVIC & Ors
NG…

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: [1995] FCA 890
Decision Date: 1 NOVEMBER 1995

CaseChat Overview and Summary

Sipad Holding d.d.p.o. and Pero Vladic sought to establish their entitlement to be registered as the members of Sidex Australia, a company incorporated in New South Wales. The applicants also sought declarations that resolutions adopted by the members of Sidex Australia on 26 April 1995 were valid and effective. The respondents, including individual directors and the company itself, opposed the application. The central issue was whether Sipad Holding, a corporation formed under the law of the Republic of Bosnia and Herzegovina, was entitled to be registered as the holder of the majority of shares in Sidex Australia. The court examined the history of ownership and name changes of the entity that eventually became Sipad Holding, concluding that it was entitled to the shares. The court also found that the resolutions passed at the general meeting of Sidex Australia on 26 April 1995 were valid despite procedural irregularities, as no substantial injustice resulted from the irregularities.

The court ordered that Sipad Holding was to be registered as the holder of 1,983,251 shares in Sidex Australia and that the register be rectified accordingly. The court further declared that the resolutions passed at the general meeting on 26 April 1995 were valid and effective. The application was dismissed as against the second respondent, Dragan Karac, due to his absence and lack of notice of the amendments. The court invited the parties to make submissions on the appropriate order for costs.

Orders