Tainsh v Barber - [1997] FCA 37

CORPORATIONS - oppression - where company is in the nature of a quasi-partnership - whether the termination of employment of a "partner" was oppressive of her as a shareholder within the meaning of s 260

CORPORATIONS - oppression - where company is in the nature of a quasi-partnership - whether a "partner's" refusal to divulge information essential to the conduct of the business can amount to "conduct of the affairs of the company" within the meaning of s 260 - whether such behaviour was oppressive within the meaning of s 260

CORPORATIONS - oppression - relief - power of Court to make order for compulsory purchase of shares

Corporations Law - s 260

New South Wales Rugby League Limited v Wayde and Anor (1985) 3 ACLC 177
Thomas v H.W. Thomas Ltd. (1984) 2 ACLC 610
Wayde and Anor v New South Wales Rugby League Limited (1985-6) 10 ACLR 87
Dynasty Pty Limited v Coombs (1995) 13 ACLC 1290
Re Bodalbo Pty Limited (1992) 10 ACLC 351

LILIANE TAINSH v JUSTIN SAMUEL BARBER, DONNA ANGEL BOYCE-MONAGHAN and AUSTCORP No 452 PTY LIMITED; JUSTIN SAMUEL BARBER AND DONNA ANGEL BOYCE-MONAGHAN v LILIANE TAINSH and AUSTCORP No 452 PTY LIMITED

No. NG 3703 of 1995

CORAM:    FOSTER J
DATE:     7 FEBRUARY 1997
PLACE:    SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 3703 of 1995
  )
GENERAL DIVISION                 )

IN THE MATTER OF AUSTCORP No 452 PTY LIMITED
ACN 062 498 097

BETWEEN:LILIANE TAINSH

Applicant

AND:JUSTIN SAMUEL BARBER

First Respondent

DONNA ANGEL BOYCE-MONAGHAN

Second Respondent

AUSTCORP No 452 PTY LIMITED

Third Respondent

JUSTIN SAMUEL BARBER AND DONNA ANGEL BOYCE-MONAGHAN

Cross-Claimants

LILIANE TAINSH

First Cross-Respondent

AUSTCORP No 452 PTY LIMITED

Second Cross-Respondent

CORAM: FOSTER J

DATE: 7 FEBRUARY 1997

PLACE: SYDNEY

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1.The application be dismissed with costs.

2.The cross-claim be allowed.

3.The cross-claimants purchase from the first cross-respondent, and the first cross-respondent sell to the cross-claimants, the first cross-respondent's share in the second cross-respondent for the sum of $52,000.

4.Each party to bear his, her or its own costs of the cross-claim.

THE COURT DECLARES THAT:

1.The dismissal of the applicant as an employee of the third respondent was reasonable in all the circumstances.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 3703 of 1995
  )
GENERAL DIVISION                 )

IN THE MATTER OF AUSTCORP No 452 PTY LIMITED
ACN 062 498 097

BETWEEN:LILIANE TAINSH

Applicant

AND:JUSTIN SAMUEL BARBER

First Respondent

DONNA ANGEL BOYCE-MONAGHAN

Second Respondent

AUSTCORP No 452 PTY LIMITED

Third Respondent

JUSTIN SAMUEL BARBER AND DONNA ANGEL BOYCE-MONAGHAN

Cross-Claimants

LILIANE TAINSH

First Cross-Respondent

AUSTCORP No 452 PTY LIMITED

Second Cross-Respondent

CORAM: FOSTER J

DATE: 7 FEBRUARY 1997

PLACE: SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR: In these proceedings the applicant and the cross-claimants seek against…

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: [1997] FCA 37
Decision Date: 7 FEBRUARY 1997

CaseChat Overview and Summary

Liliane Tainsh sued her former business partners, Justin Samuel Barber and Donna Angel Monaghan, and their company, Austcorp No 452 Pty Limited, seeking relief under s 260 of the Corporations Law. The applicants had been equal partners in a business making and merchandising pasta products, including sauces and fillings. Tainsh alleged that the termination of her employment by the company was oppressive to her as a shareholder. The respondents denied that the termination was oppressive and alleged in their cross-claim that Tainsh's refusal to divulge information essential to the conduct of the business was oppressive to them. The applicants and the respondents both sought an order for the compulsory purchase of Tainsh's share. The Court found that Tainsh's employment was terminated for good cause and that she had brought about a situation where her co-directors had no option but to terminate her employment. The Court also found that Tainsh's refusal to divulge information essential to the conduct of the business was oppressive to the respondents. The Court ordered that the application be dismissed with costs. The Court also ordered that the respondents purchase Tainsh's share in the company for $52,000.

Orders