Sipad Holding v Popovic, Nikola

[1995] FCA 894

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA                 )
NEW SOUTH WALES DISTRICT REGISTRY       )          No. NG3192 of 1995
GENERAL DIVISION  )

IN THE MATTER OF
SIDEX AUSTRALIA PTY LIMITED
(RECEIVER AND MANAGER APPOINTED)
(A.C.N. 000 828 606)

BETWEEN:SIPAD HOLDING d.d.p.o.

First Applicant

PERO VLADIC
  Second Applicant

AND:NIKOLA POPOVIC

First Respondent

DRAGAN KARAC

Second Respondent

MILAN JOVICIC

Third Respondent

JOSEPH JOHN GILLES

Fourth Respondent

AUSTRALIA FURNITURE PTY LIMITED

Fifth Respondent

SIDEX AUSTRALIA PTY LIMITED

(RECEIVER AND MANAGER APPOINTED)

Sixth Respondent

SIPAD EXPORT IMPORT d.d.p.o.

Seventh Respondent

CORAM:    Lehane J
PLACE:     Sydney
DATE:       12 October 1995

EXTEMPORE REASONS FOR JUDGMENT

LEHANE J:   I have before me two notices of motion.  One was handed up yesterday afternoon, and its effect, if the orders sought were granted, would be to remove the first applicant as an applicant and to join it as sixth respondent, to join Sipad Holding DDPO as first named applicant and to join Sipad Export/Import DDPO as seventh respondent. 

The second notice of motion was handed up this morning, and it would make a number of further amendments to the amended application, the general effect of which would be to make clear what is the main issue in these proceedings (that is, the issue as to the ownership of the majority of the shares in Sidex Australia Pty Limited) and to claim appropriate relief following a determination of that issue.

As for the first, second and third respondents, the effect of the amendment would be, I believe, to make it clear that the only orders sought which would be binding on them in these proceedings are orders relating to the validity or otherwise of resolutions, the effect of which if they were valid would be to amend the articles of association of Sidex Australia Pty Limited and to make changes in the constitution of the board of directors of that company including, of course, the removal of each of the first, second and third respondents as directors.

Relief on the footing that the first, second and third respondents have breached or assisted in a breach of the Corporations Law is no longer claimed.

The question I have to consider is whether, given that there is clear power in the Court to make the amendments sought, the making of those amendments would, in a relevant way, prejudice any party to these proceedings. 

My conclusion is that there is no such prejudice.  The principal reason for that conclusion is that to which Mr Douglas referred: that, despite the perhaps unfortunate form these proceedings originally took, it has been clear, I believe, from the time when the affidavits in support of the application were filed in April, that the principal question involved in these proceedings is who is the owner of the majority of the shares in Sidex Australia Pty Limited.

The effect of the amendments is to reconstitute these proceedings, in my view in a way in which that principal issue can be more appropriately and conveniently determined.  It may also be said that the effect of the amendments is in fact to make it clear that apart from the determination of the question whether, in the circumstances, the first, second and third respondents continue to be directors of Sidex Australia Pty Limited, no relief will be granted in these proceedings, as they would stand if the amendments were allowed, against them personally or in a way which would prejudice any personal interest of theirs.

I turn then to the notices of motion.  As to the notice of motion dated 11 October 1995, I make orders 1, 2, 3 and 4 as sought in the notice of motion.  As to the notice of motion dated 12 October 1995, I make orders 1 and 2 as set out in that notice of motion.

I order that the costs occasioned by those amendments be paid by the applicants.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.

Associate:

Dated:  9 November 1995

Heard:  12 October 1995

Place:                   Sydney

Decision:              12 October 1995

Appearances:        Mr F M Douglas QC and Mr J E Sexton of counsel instructed by Mallesons Stephen Jaques appeared for the applicant.

The first and third respondents appeared in person.

Mr V R Gray of counsel instructed by R F Giles Payne & Co appeared for the fourth respondent.

Mr S G Finch of counsel instructed by Phillips Fox appeared for the sixth respondent.