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Stojcevski v Kogan

Stojcevski v Kogan

Case [2018] NSWSC 127 16 February 2018

Contract Formation

Appeal

Contract Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Stojcevski v Kogan [2018] NSWSC 127
Hearing dates: 24 and 30 January 2018
Date of orders: 16 February 2018
Decision date: 16 February 2018
Jurisdiction: Equity
Before: Robb J
Decision:
(1) The plaintiff’s summons is dismissed.
(2) The plaintiff is to pay the defendants’ costs of the proceedings.
Catchwords:
APPEAL – Control of proceedings – whether plaintiff entitled to cause company to appeal
CONTRACT – Deed of company arrangement – Construction of contract – meaning of reasonable prospects of appeal succeeding – whether Senior Counsel’s written advice expressed reasonable prospects of appeal succeeding – whether administrators given required access to Senior Counsel
Cases Cited:
Abourjaily v Parkview Estate Pty Ltd [2017] NSWSC 1256
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Samuels v Western Australia (2005) 30 WAR 473; [2005] WASCA 193
Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300; [2005] NSWCA 153
Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284
Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Cranney Farm Pty Ltd v Corowa Fertilizers Pty Ltd [2011] NSWSC 9

Category: Principal judgment
Parties: Lilly Stojcevski (plaintiff)
Barry Frederic Kogan (first defendant)
Joseph Hayes (second defendant)
Representation:
Counsel: P Bates (plaintiff)
I Pike SC (defendants)
Solicitors: Margiotta Solicitors & Attorneys (plaintiff)
KL Gates (defendants)

File Number(s): 2018/22906

Judgment

The plaintiff is Ms Lily Stojcevski. Ms Stojcevski is the sole director and the holder of 51% of the shares in Parkview Estate Pty Ltd (Subject to Deed of Company Arrangement) (the company). The defendants, Mr Barry Frederic Kogan and Mr Joseph Hayes, are the deed administrators of the relevant deed of company arrangement (the administrators).
The plaintiff commenced these proceedings by summons filed in Court on 22 January 2018. By the cooperation and with the agreement of the parties, the final hearing of the proceedings took place on 30 January 2018.
The need for an urgent final hearing arose because the issue at the heart of the dispute is whether Ms Stojcevski is entitled to cause the company to appeal from a judgment given by Darke J on 19 September 2017 in Abourjaily v Parkview Estate Pty Ltd [2017] NSWSC 1256. That case concerned whether a number of plaintiffs were entitled to orders for the specific performance by the company of contracts for the sale of certain properties that were lots in a proposed but unregistered subdivision at the time the various contracts were entered into. Each of the contracts of sale contained a term that entitled either party to rescind the contract if the plan of subdivision had not been registered by a stipulated date. The contracts imposed upon the company an obligation to use its reasonable endeavours, or its best endeavours, to achieve registration by the relevant date. In outline, the…

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 Stojcevski v Kogan

Details

AGLC: Stojcevski v Kogan [2018] NSWSC 127
Case: [2018] NSWSC 127
Decision Date: 16 February 2018

CaseChat Overview and Summary

In the case of Stojcevski v Kogan, the plaintiff sought to appeal against a decision of the Federal Circuit Court which found that he was not entitled to control the company’s appeal against a decision of the Federal Court. The plaintiff sought to control the company’s appeal on the basis that he was the majority shareholder and director of the company. The company was in the process of a deed of company arrangement, and the plaintiff sought to cause the company to appeal on the basis of advice he obtained from Senior Counsel that the appeal had reasonable prospects of success. The Full Court of the Federal Court was required to determine whether the plaintiff was entitled to cause the company to appeal, and whether the administrators of the company were given reasonable access to Senior Counsel’s advice.

The court found that the plaintiff was not entitled to cause the company to appeal as he did not have the requisite authority to do so. The court held that the company’s administrators had the power to determine whether to proceed with an appeal, and that they were entitled to rely on their own legal advice in making that decision. The court also found that the administrators were given reasonable access to Senior Counsel’s advice, as they had been provided with a written opinion that expressed reasonable prospects of the appeal succeeding. The court held that the administrators were not required to obtain their own independent legal advice, as the advice provided by Senior Counsel was sufficient.

The court dismissed the appeal and found that the plaintiff was not entitled to control the company’s appeal. The court held that the administrators of the company were entitled to rely on their own legal advice in making the decision whether to proceed with an appeal, and that they had been provided with reasonable access to Senior Counsel’s advice. The court did not make any further orders.

Orders