Tawfik v Bill - [2010] NSWSC 1034

CITATION: Tawfik v Bill [2010] NSWSC 1034

HEARING DATE(S): 09/09/10

JUDGMENT DATE :
14 September 2010

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Application dismissed.

CATCHWORDS: PROCEDURE - parties' agreement noted by court - oppression proceedings between shareholders - court on a previous occasion noted parties' agreement and made orders by consent - orders include order for purchase by defendants of plaintiffs' shares in two companies at a price calculated by reference to expert's determination of value - parties' agreement concerns instructing of expert to determine value and acceptance of the determination - defendants seek order that plaintiffs and defendants give further instructions to expert - plaintiffs oppose such application - whether court has power to compel variation of parties' agreement - held no source of such power identified

LEGISLATION CITED: Civil Procedure Act 2005, s 61
Corporations Act 2001 (Cth), ss 232, 233, 461
Independent Contractors Act 2006 (Cth), s 16
Industrial Relations Act 1996, s 106
Trade Practices Act 1974 (Cth), s 87

CATEGORY: Principal judgment

CASES CITED: Cameron v Cuddy [1914] AC 651
Firedam Civil Engineering Pty Ltd v Shoalhaven City Council [2010] NSWCA 59
Jenolan Caves Resort Pty Ltd v Field [2007] NSWSC 1117
McGuirk v University of New South Wales [2010] NSWCA 104
Power v Ekstein [2010] NSWSC 472
Scottish Co-operative Wholesale Society Ltd v Meyer [1959] AC 324
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691

PARTIES: Joseph Tawfik and Louise Genevieve Tawfik - Plaintiffs
Martin Bruce Bill and Wayne Bevin Boden - Defendants

FILE NUMBER(S): SC 2009//289276

COUNSEL: Mr I M Jackman SC - Plaintiffs
Mr N G Rochow SC/Mr P Britten-Jones - Defendants

SOLICITORS: Ryan Lawyers - Plaintiffs
DibbsBarker Lawyers - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

TUESDAY, 14 SEPTEMBER 2010

2009/289276 JOSEPH TAWFIK & ANOR v MARTIN BRUCE BILL & ANOR

JUDGMENT

1 This is an oppression suit. The plaintiffs (Mr Tawfik and Mrs Tawfik) are members of Contact 121 Pty Ltd and Contact 121 (Qld) Pty Ltd. The other members are the defendants (Mr Bill and Mr Boden).

2 The plaintiffs allege that the affairs of the two companies have been conducted in a manner that is contrary to the interests of the members as a whole or oppressive to or unfairly prejudicial to the plaintiffs or unfairly discriminatory against them.

3 On 21 December 2009, the court, at the invitation of the parties and with their consent, noted certain agreements of the parties and made certain orders, as follows:

“The Court notes that:

”

2. the parties have agreed that the Value will be binding on them…

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 Tawfik v Bill

Details

AGLC: Tawfik v Bill [2010] NSWSC 1034
Case: [2010] NSWSC 1034
Decision Date: 14 September 2010

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Tawfik v Bill involves a dispute between shareholders in two companies. The previous proceedings had resulted in a court-approved agreement between the parties, which included the purchase by the defendants of the plaintiffs' shares at a price determined by an expert. The defendants sought to compel the plaintiffs to give further instructions to the expert, which the plaintiffs opposed. The court was required to determine whether it had the power to compel the parties to vary the terms of their agreement.
The court examined the legal authority for compelling the parties to vary their agreement. It found that there was no provision in the Corporations Act or any other relevant legislation that granted the court such power. The court also considered its inherent jurisdiction to make orders to prevent injustice or oppression but found that this did not extend to compelling the parties to vary their agreement. The court concluded that it did not have the power to compel the parties to give further instructions to the expert and dismissed the defendants' application.
The court's decision was based on a careful analysis of the relevant legal principles and authorities. It found that the court's power to make orders in oppression proceedings is limited to preventing injustice or oppression and does not extend to compelling the parties to vary their agreement. The court also noted that the parties had freely entered into the agreement and that it would be inappropriate to interfere with their autonomy in this way. The decision highlights the importance of respecting the parties' agreement and the limited role of the court in compelling them to vary its terms.

Orders