Trojan Equity Ltd v CMI Ltd - [2011] QSC 346

SUPREME COURT OF QUEENSLAND

CITATION:

In the matter of CMI Limited [2011] QSC 346

PARTIES:

IN THE MATTER OF CMI LIMITED
ACN 050 542 553

TROJAN EQUITY LIMITED

ACN 113 436 141
(Applicant)

v

CMI LIMITED

ACN 050 542 553
(First Respondent)

THE PERSONAL REPRESENTATIVES OF RAYMOND DAVID CATELAN (DECEASED)
(Second Respondent)

COLIN GREGORY RYAN
(Third Respondent)

DANNY HERCEG
(Fourth Respondent)

RICHARD DENIS CATELAN
(Fifth Respondent)

RP PROSPECTS PTY LTD as trustee for THE M & L TRUST
(Sixth Respondent)

RD CATELAN INVESTMENTS PTY LTD as trustee for RDC TRUST
(Seventh Respondent)

ASSETYLENE PTY LTD as trustee for RICHARD CATELAN FAMILY TRUST
(Eighth Respondent)

TINKERBELL ENTERPRISES PTY LTD
as trustee for THE LEANNE CATELAN TRUST
(Ninth Respondent)

L J CATELAN SUPERANNUATION FUND PTY LTD
as trustee for THE LEANNE CATELAN SUPERANNUATION FUND
(Tenth Respondent)

M L CATELAN SUPERANNUATION FUND PTY LTD
as trustee for THE MICHELLE CATELAN SUPERANNUATION FUND
(Eleventh Respondent)

FILE NO/S:

BS 6828 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

23 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

8 November 2011

JUDGE:

McMurdo J

ORDER:

1. The application for an interlocutory injunction will be dismissed.

2. The interlocutory application filed on 17 October 2011 will otherwise be adjourned to a date to be fixed.

CATCHWORDS:

CORPORATIONS – MEMBERSHIP, RIGHTS AND REMEDIES – MEMBERS' REMEDIES AND INTERNAL DISPUTES – OPPRESSIVE OR UNFAIR CONDUCT – PROCEDURE – OTHER PROCEDURAL MATTERS – where the applicant is a minority shareholder in the company – where the applicant has instituted proceedings seeking final relief under sections 232, 233 and 461 of the Corporations Act 2001 (Cth) – where the applicant seeks an injunction restraining the company from defending the proceedings – whether the company’s case is being conducted on the instructions of the third respondent but without its authority – whether the company’s active participation in the proceedings is necessary or expedient in the interest of the company as a whole – whether an injunction should be granted

Corporations Act 2001 (Cth), s 195, s 232, s 233, s 461

Gusdote Pty Ltd v Ashley (2011) 277 ALR 579, cited
Hawksford v Hawksford [2005] NSWSC 463, cited
Nece Pty Ltd v Ritek Incorporation (1997) 24 ACSR 38, applied
Pickering v Stephenson (1872) LR 14 Eq 322, distinguished
Power v Ekstein (2010) 77 ACSR 302, applied
Re A Company (No 004502 of 1988) Ex parte Johnson [1992] BCLC 701, distinguished
Re A Company (No 1126 of 1992) [1994] 2 BCLC 146, applied

Re D G Brims & Sons Pty Ltd (1995) 16 ACSR 559, cited

COUNSEL:

JC Sheahan SC with SR Cooper for the applicant
B O’Donnell QC with SB Hooper for the first respondent

DG Clothier for the third and fourth respondents

SOLICITORS:

Russells for the applicant
Allens Arthur Robinson for the first respondent

Minter Ellison for the third and fourth respondents

The applicant (‘Trojan’) is a minority shareholder in the first respondent, which I will call the Company. Trojan seeks relief…

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 Trojan Equity Ltd v CMI Ltd

Details

AGLC: In the matter of CMI Limited [2011] QSC 346
Case: [2011] QSC 346
Decision Date: 23 November 2011

CaseChat Overview and Summary

Trojan Equity Limited, a minority shareholder, brought proceedings against CMI Limited, alleging oppressive or unfair conduct under sections 232 and 233 of the Corporations Act 2001 (Cth), as well as seeking an order under section 461 for relief from oppressive conduct. The applicant sought an injunction to restrain the company from defending the proceedings, arguing that the company’s case was being conducted on the instructions of a third party without its authority, and that the company’s active participation in the proceedings was not in the interest of the company as a whole.

The legal issues before the court included whether the company's case was indeed being conducted on the instructions of a third party without proper authority, and whether the company’s active participation in the proceedings was necessary or expedient in the interest of the company as a whole. Additionally, the court had to consider whether an injunction should be granted to restrain the company from defending the proceedings.

The court found that the applicant had not established the requisite grounds to justify the grant of an injunction. It held that the company's active participation in the proceedings was necessary and expedient in the interest of the company as a whole, and that there was no evidence to support the claim that the company’s case was being conducted without proper authority. Consequently, the court dismissed the application for an interlocutory injunction and adjourned the interlocutory application filed on 17 October 2011 to a later date.

Orders

Orders of the court

1. The application for an interlocutory injunction will be dismissed.

2. The interlocutory application filed on 17 October 2011 will otherwise be adjourned to a date to be fixed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	In the matter of CMI Limited [2011] QSC 346
PARTIES:	IN THE MATTER OF CMI LIMITED ACN 050 542 553 TROJAN EQUITY LIMITED ACN 113 436 141 (Applicant) v CMI LIMITED ACN 050 542 553 (First Respondent) THE PERSONAL REPRESENTATIVES OF RAYMOND DAVID CATELAN (DECEASED) (Second Respondent) COLIN GREGORY RYAN (Third Respondent) DANNY HERCEG (Fourth Respondent) RICHARD DENIS CATELAN (Fifth Respondent) RP PROSPECTS PTY LTD as trustee for THE M & L TRUST (Sixth Respondent) RD CATELAN INVESTMENTS PTY LTD as trustee for RDC TRUST (Seventh Respondent) ASSETYLENE PTY LTD as trustee for RICHARD CATELAN FAMILY TRUST (Eighth Respondent) TINKERBELL ENTERPRISES PTY LTD as trustee for THE LEANNE CATELAN TRUST (Ninth Respondent) L J CATELAN SUPERANNUATION FUND PTY LTD as trustee for THE LEANNE CATELAN SUPERANNUATION FUND (Tenth Respondent) M L CATELAN SUPERANNUATION FUND PTY LTD as trustee for THE MICHELLE CATELAN SUPERANNUATION FUND (Eleventh Respondent)
FILE NO/S:	BS 6828 of 2011
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	23 November 2011
DELIVERED AT:	Brisbane
HEARING DATE:	8 November 2011
JUDGE:	McMurdo J
ORDER:	1. The application for an interlocutory injunction will be dismissed. 2. The interlocutory application filed on 17 October 2011 will otherwise be adjourned to a date to be fixed.
CATCHWORDS:	CORPORATIONS – MEMBERSHIP, RIGHTS AND REMEDIES – MEMBERS' REMEDIES AND INTERNAL DISPUTES – OPPRESSIVE OR UNFAIR CONDUCT – PROCEDURE – OTHER PROCEDURAL MATTERS – where the applicant is a minority shareholder in the company – where the applicant has instituted proceedings seeking final relief under sections 232, 233 and 461 of the Corporations Act 2001 (Cth) – where the applicant seeks an injunction restraining the company from defending the proceedings – whether the company’s case is being conducted on the instructions of the third respondent but without its authority – whether the company’s active participation in the proceedings is necessary or expedient in the interest of the company as a whole – whether an injunction should be granted Corporations Act 2001 (Cth), s 195, s 232, s 233, s 461 Gusdote Pty Ltd v Ashley (2011) 277 ALR 579, cited Hawksford v Hawksford [2005] NSWSC 463, cited Nece Pty Ltd v Ritek Incorporation (1997) 24 ACSR 38, applied Pickering v Stephenson (1872) LR 14 Eq 322, distinguished Power v Ekstein (2010) 77 ACSR 302, applied Re A Company (No 004502 of 1988) Ex parte Johnson [1992] BCLC 701, distinguished Re A Company (No 1126 of 1992) [1994] 2 BCLC 146, applied Re D G Brims & Sons Pty Ltd (1995) 16 ACSR 559, cited
COUNSEL:	JC Sheahan SC with SR Cooper for the applicant B O’Donnell QC with SB Hooper for the first respondent DG Clothier for the third and fourth respondents
SOLICITORS:	Russells for the applicant Allens Arthur Robinson for the first respondent Minter Ellison for the third and fourth respondents