Vaspip 2 Pty Ltd v Thorn Group Ltd - [2020] VSC 700

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

CORPORATIONS LIST

S ECI 2020 03719

IN THE MATTER OF THORN GROUP LIMITED (ACN 072 507 147)

VASPIP 2 PTY LTD

Plaintiff

THORN GROUP LIMITED (ACN 072 507 147) and others

Defendants

---

JUDGE:

RIORDAN J

WHERE HELD:

Melbourne

DATE OF HEARING:

30 September and 7 October 2020

DATE OF JUDGMENT:

14 October 2020

CASE MAY BE CITED AS:

Vaspip 2 Pty Ltd v Thorn Group Ltd

MEDIUM NEUTRAL CITATION:

[2020] VSC 700

---

CORPORATIONS – Requisition by members for a general meeting under s 249D of the Corporations Act 2001 (Cth) (‘the Act’) – Requisition compiled by attaching separate execution pages to the requisition – Whether requisition valid – Principles to be applied in determining validity considered – Requisition not valid.

CORPORATIONS – Whether deficiency in request under s 249D of the Act was validated under s 1322(2) – Whether deficiency in request was a procedural irregularity within the meaning of s 1322(1) – Whether the procedural irregularity has caused or may cause substantial injustice.

CORPORATIONS – Whether Court could validate deficiency in request under s 1322(4) of the Act – Whether deficiency was a contravention within the meaning of s 1322(4) – Whether relief must be refused under s 1322(6).

---

APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr S K Wilson QC with

Mr R E T Wodak

Axial Advisory

For the First Defendant

Mr B Coles QC with

Mr D Meyerowitz-Katz

Marshalls+Dent+Wilmoth

HIS HONOUR:

1 By originating process filed 23 September 2020, the plaintiff (‘Vaspip’) seeks the following relief against the first defendant (‘TGA’):
1. An order under sections 1322(4) and 1324 of the Corporations Act that within 7 days of this order TGA call a general meeting of its members (the Meeting) at which the resolutions set out in the 249D Request are proposed as ordinary resolutions.
2. An order under section 1324 of the Corporations Act that TGA distribute, together with the notice of the Meeting, the statement attached to the 249P Request.
3. An order under section 1324 of the Corporations Act that the second to fifth defendants do all things necessary to cause TGA to comply with paragraphs 1 and 2 of this order.
4. A declaration pursuant to section 1322(4) and pursuant to the Court's inherent jurisdiction that the 249D Request is not invalid by reason of any contravention of the requirements of sections 203D(2) of the Corporations Act.
5. An order that the first defendant pay the plaintiff’s costs of the proceedings.

2 By submissions filed 29 September 2020, Vaspip further seeks relief from any alleged invalidity in the s 249D request under sub-ss 1322(2) and (4) of the Corporations Act 2001 (Cth) (‘the Act’).
Background
3 TGA is a company listed on the official list of the Australian Securities Exchange operated by ASX Ltd.
4 Vaspip is a shareholder in TGA, and an associate (within the meaning of Chapter 19.12 of the ASX Listing Rules) of…

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 Vaspip 2 Pty Ltd v Thorn Group 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: [2020] VSC 700
Decision Date: 14 October 2020

CaseChat Overview and Summary

Vaspip 2 Pty Ltd sought a general meeting of Thorn Group Ltd under section 249D of the Corporations Act 2001 (Cth). The dispute centred around the validity of the requisition for the meeting, specifically whether the requisition was compiled by attaching separate execution pages to the requisition form. The Federal Court of Australia was tasked with determining the validity of the requisition.

The primary legal issue before the Court was whether the requisition complied with the statutory requirements under section 249D of the Act. The Court considered the principles applicable to determining the validity of such a requisition, which included the requirement that the requisition be in writing and signed by the requisite number of members. Additionally, the Court examined whether any deficiencies in the requisition could be validated under section 1322(2) of the Act, and whether such deficiencies constituted a procedural irregularity that caused or may cause substantial injustice. The Court also considered whether it had the discretion to validate the deficiency under section 1322(4) of the Act, and if such a contravention warranted refusal of relief under section 1322(6).

In its reasoning, the Court held that the requisition was invalid because it did not comply with the statutory requirements. The Court noted that the attachment of separate execution pages did not constitute a valid compilation of the requisition under the Act. The Court further determined that the deficiencies in the requisition were not validated under section 1322(2), and that the procedural irregularity did not cause or may not cause substantial injustice. Consequently, the Court found that it did not have the authority to validate the deficiency under section 1322(4), and that relief must be refused under section 1322(6).

The Court ultimately dismissed the application for a general meeting, with the orders outlined in paragraphs [78] to [80] of the judgment.

Orders

Orders of the court

See [78]-[80]

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.