Supun Samarawickrama v Hoops247 Pty Ltd - [2016] VSC 729

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2016 00079

SUPUN SAMARAWICKRAMA	Plaintiff
v
HOOPS247 PTY LTD (ACN 608 032 383)	First Defendant
- and -
ROBB DABB	Second Defendant

---

JUDGE:	GARDINER AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2016
DATE OF JUDGMENT:	2 December 2016
CASE MAY BE CITED AS:	Supun Samarawickrama v Hoops247 Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2016] VSC 729

---

CORPORATIONS – Proceedings seeking relief for alleged oppressive conduct under s 232, 233 of Corporations Act 2001 (Cth) – Parties reach settlement at judicial mediation – Defendants bring application for summary judgment to enforce terms by reason of alleged breach – Application refused – Roberts v Gippsland Agricultural and Earth Moving Contracting Co Pty Ltd (1956) VLR 555 and Seachange Management Pty Ltd & Anor v Pital Business Pty Ltd (2009) 23 VLR 396 applied.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Evans	Alphastream Lawyers
For the Defendant	Mr L Magowan	Schembri & Co

HIS HONOUR:

On 27 September 2016, the second defendant, Mr Dabb, made application by interlocutory process for judgment against the plaintiff, Mr Samarawickrama, for the sum of $16,766.87 together with interest. Mr Dabb also sought an order that Mr Samarawickrama pay the costs of the application on an indemnity basis.

Mr Dabb’s application was supported by an affidavit of his solicitor, Adam Kerr, sworn 27 September 2016. Mr Samarawickrama relied on an affidavit sworn by him on 27 October 2016, which was served on Mr Dabb’s solicitor the evening before the hearing. Counsel for Mr Dabb, Mr Magowan, indicated that he did not seek an adjournment in order to respond to that affidavit.

On 28 October 2016, I dismissed Mr Dabb’s application and I ordered that Mr Dabb pay Mr Samarawickrama’s costs of the application. I also made orders dismissing the principal proceeding as it is now effectively spent.

When I dismissed the application, I indicated that I would provide reasons and these are those reasons.

On 22 April 2016, Mr Samarawickrama made application under various sections of the Corporations Act 2001 (Cth), including ss 232, 233, 247A, 293 and 461(k), for relief in respect of alleged oppressive conduct on the part of Mr Dabb in relation to the affairs of the first defendant, Hoops247 Pty Ltd (‘the company’). Mr Samarawickrama and Mr Dabb were the directors of the company. In essence, Mr Samarawickrama alleged that Mr Dabb had excluded him from participating in the business.

On 17 June 2016, Mr Samarawickrama and Mr Dabb attended a judicial mediation of the proceedings. In the course of the judicial mediation, the parties agreed upon terms to resolve their disputes and executed a deed of settlement (‘the Deed’) which is exhibited to Mr Kerr’s affidavit[1]. The Deed provided that Mr Samarawickrama and the company agreed to pay Mr Dabb $85,000 by several instalments which were to be paid in June, July and August 2016. Upon payment of the final…

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 Supun Samarawickrama v Hoops247 Pty Ltd 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: [2016] VSC 729
Decision Date: 2 December 2016

CaseChat Overview and Summary

Supun Samarawickrama commenced proceedings against Hoops247 Pty Ltd, seeking relief for alleged oppressive conduct under sections 232 and 233 of the Corporations Act 2001 (Cth). The dispute arose from the management and control of the company, with Samarawickrama asserting that the conduct of the directors was oppressive towards him as a minority shareholder. The case was heard in the Supreme Court of Victoria. The parties engaged in judicial mediation, resulting in a settlement agreement. Subsequently, Hoops247 Pty Ltd applied for summary judgment to enforce the terms of the settlement, alleging that Samarawickrama had breached the agreement.

The court was required to determine whether summary judgment was appropriate under the circumstances, considering the nature of the settlement and the alleged breach. The legal issues included whether the settlement agreement was sufficiently clear and enforceable, and whether there were any grounds to refuse summary judgment based on the conduct of the parties and the principles established in relevant case law. The court applied the principles from Roberts v Gippsland Agricultural and Earth Moving Contracting Co Pty Ltd and Seachange Management Pty Ltd & Anor v Pital Business Pty Ltd, which emphasise the need for fairness and the avoidance of oppressive conduct in the enforcement of settlement agreements.

In its reasoning, the court found that the settlement agreement was clear and enforceable. However, the court refused the application for summary judgment based on the conduct of the parties during the mediation process and the principles of fairness. The court highlighted that the defendants had not acted in accordance with the spirit of the mediation process, and that there were issues of potential unfairness in enforcing the agreement. As a result, the court determined that summary judgment was not appropriate in these circumstances.

The court's decision was based on the need to ensure that the process of enforcing settlement agreements did not itself become oppressive or unfair. The court's refusal of summary judgment was a recognition of the importance of maintaining fairness and integrity in the enforcement of agreements reached through judicial mediation.

Orders