Titlow, James John v Intercapital Group (Australia) Pty Ltd - [1996] FCA 374

Corporations - application under s 260 of the Law - whether the applicant had standing to bring proceedings at the date when the application was filed - whether the applicant was a member of the company when the application was filed - whether someone whose name was entered in the register but has subsequently been removed and who maintains a claim for restoration may be regarded as a member for the purposes of s 260 of the Law

Practice and procedure - motion seeking summary dismissal of application

Corporations Law s 184, s 260

Federal Court Rules O 20

Mike Gaffikin Marine Pty Ltd v Princes Street Marina Pty Ltd (1995) 13 ACLC 991 at 1004, 1005 applied
Niord Pty Ltd v Adelaide Petroleum NL (1990) 8 ACLC 684 at 697, 698 applied
Leaney v Olmstead Pty Ltd (1994) 51 FCR 240 referred
Re Independent Quarries Pty Ltd (1994) 12 ACLC 159 considered

JAMES JOHN TITLOW v INTERCAPITAL GROUP (AUSTRALIA) PTY LIMITED & ANOR
No. NG3100 of 1996

CORAM:Lehane J
PLACE:Sydney

DATE: 12 April 1996

IN THE FEDERAL COURT OF AUSTRALIA  )
NEW SOUTH WALES DISTRICT REGISTRY  )
GENERAL DIVISION  )          No. NG3100 of 1996

BETWEEN:JAMES JOHN TITLOW
Applicant

AND:INTERCAPITAL GROUP
(AUSTRALIA) PTY LIMITED
First Respondent

INTERCAPITAL GROUP LIMITED
Second Respondent

CORAM:Lehane J
PLACE:Sydney
DATE:12 April 1996

MINUTE OF ORDERS

THE COURT ORDERS:

THAT the application is dismissed with costs.

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  )
GENERAL DIVISION  )          No. NG3100 of 1996

BETWEEN:JAMES JOHN TITLOW
Applicant

AND:INTERCAPITAL GROUP
(AUSTRALIA) PTY LIMITED
First Respondent

INTERCAPITAL GROUP LIMITED
Second Respondent

CORAM:Lehane J
PLACE:Sydney
DATE:12 April 1996

EXTEMPORE REASONS FOR JUDGMENT

LEHANE J: This is an application under s 260 of the Corporations Law seeking an order for purchase of the applicant's shares in the first respondent, an order for the winding up of the first respondent, or alternatively an order that the respondents pay damages to the applicant. Certain interlocutory relief is claimed but that claim is not pursued. The respondents have moved for what is in effect summary dismissal of the application, and in the alternative for an order either that the application be stayed or that it be stood out of the list.

The short but not perhaps entirely easy point raised by the respondents' motion is whether the applicant had, at the date when the application was filed, standing to bring proceedings under s 260 of the Corporations Law. Apart from the Australian Securities Commission, the only person who can bring an application for relief under
s 260 in relation to a company is a member of the company. The question thus is, was the applicant at least arguably a member of the first respondent on the date when the application was filed, that is to say, 20 February 1996?

The factual background can be stated quite briefly. The applicant was…

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: [1996] FCA 374
Decision Date: 12 APRIL 1996

CaseChat Overview and Summary

The case of Titlow, James John v Intercapital Group (Australia) Pty Ltd was heard in the Federal Court of Australia. The applicant sought relief under s 260 of the Corporations Law, including an order for the purchase of his shares, winding up of the company, or damages. The respondents moved for summary dismissal of the application on the basis that the applicant lacked standing to bring the proceedings. The central issue before the court was whether the applicant, who had been removed from the company's register of members, could still be considered a member for the purposes of bringing proceedings under s 260.

The court examined the relevant statutory provisions and case law to determine the requirements for standing. It noted that under s 184 of the Corporations Law, a person becomes a member only when their name is entered in the register of members. The court also considered several authorities, including Mike Gaffikin Marine Pty Ltd v Princes Street Marina Pty Ltd, Niord Pty Ltd v Adelaide Petroleum NL, and Re Independent Quarries Pty Ltd, which supported the proposition that only someone whose name appears in the register can bring an application under s 260.

The court concluded that the applicant, whose name had been removed from the register, did not have standing to bring the application. The authorities made it clear that only a person whose name is actually on the register can bring proceedings under s 260. Therefore, the application was dismissed with costs.

Orders