Visnic v Sywak & Ors - [2007] NSWSC 701

CITATION: Visnic v Sywak & Ors [2007] NSWSC 701

HEARING DATE(S): 21, 22, 23, 24 February 2006; 26, 27, 28 June 2006; 21 August 2006

JUDGMENT DATE :
3 July 2007

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

DECISION: (1) Declare that plaintiff is entitled at law and in equity to (i) one of two issued shares in capital of fourth defendant, Castlove (ii) nine of eighteen issued shares in capital of fifth defendant, Donovi (iii) two of eight issued shares in capital of each of second defendant, Adellos and third defendant, Parlamartu. (2) Declare that plaintiff is beneficially entitled to further two of the eight issued shares in capital of each of Adellos and Parlamartu, being two of the shares held legally by first defendant, Peter Sywak, in each of those companies. (3) Order that first defendant transfer to Plaintiff two of the shares held by first defendant in each of Adellos and Parlamartu. (4) Order that registers of each of Adellos, Parlamartu, Castlove and Donovi be rectified pursuant to Corporations Act, s 175 to the following effect: (i) Adellos, so that plaintiff be registered as holder of four of eight issued shares and first defendant as holder of four of eight issued shares; (ii) Parlamartu, so that plaintiff is registered as holder of four of eight issued shares and first defendant as holder of four of eight issued shares; (iii) Castlove, so that plaintiff is registered as holder of one of two issued shares and first defendant as holder of one of two issued shares; (iv) Donovi, so that plaintiff is registered as holder of nine of eighteen issued shares, and first defendant as holder of nine of eighteen issued shares. (5) Order that each of second, third, fourth and fifth defendants be wound up pursuant to Corporations Act, s 461(1)(k). (6) Order that Michael Gregory Jones be appointed liquidator of each of second, third, fourth and fifth defendants. (7) Reserve liberty to apply, if it is desired to refer the matter for an inquiry. (8) Order that first defendant pay plaintiff’s costs.

CATCHWORDS: CORPORATIONS – whether shares in corporate defendants acquired by first defendant beneficially or upon trust as to half for plaintiff – competing versions of facts – Winding up – Just and equitable ground – deadlock – no question of principle

LEGISLATION CITED: (CTH) Corporations Act 2001 ss 175, 233, 461

PARTIES: Milan Visnic (plaintiff)
Peter Orest Sywak (first defendant)
Adellos Pty Limited (second defendant)
Parlamartu Pty Limited (third defendant)
Castlove Pty Limited (fourth defendant)
Donovi Pty Limited (fifth defendant)

FILE NUMBER(S): SC 1278/03

COUNSEL: Mr A W Street SC w Ms S Kaur-Bains (plaintiff)
Mr M J Stevenson SC w Mr J M White (defendants)

SOLICITORS: Thomson Playford (plaintiff)
Cosoff Cudmore Knox (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Tuesday, 3 July 2007

1278/03 Milan Visnic v Peter Sywak & 4 Ors

JUDGMENT

1 HIS HONOUR: The plaintiff Milan Visnic, and the first defendant Peter Orest Sywak,…

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 Visnic v Sywak & Ors

Details

AGLC: Visnic v Sywak & Ors [2007] NSWSC 701
Case: [2007] NSWSC 701
Decision Date: 3 July 2007

CaseChat Overview and Summary

The case of Visnic v Sywak & Ors involved a dispute concerning the beneficial ownership of shares in two companies. The plaintiff, Visnic, claimed that he was the beneficial owner of half the shares in each of the defendants' companies. The defendants, Sywak and two others, disputed this claim and sought a winding-up order on the grounds that the companies were deadlocked and it was just and equitable to do so. The case was heard in the Supreme Court of New South Wales.

The central legal issue in this case was whether the plaintiff had acquired the shares in the companies beneficially or whether he held them on trust for himself and the defendants. The court had to consider the competing versions of the facts presented by both parties. Additionally, the court needed to determine whether the companies were indeed in a state of deadlock and whether it was just and equitable to wind them up.

The court considered the evidence and found that the plaintiff had indeed acquired the shares in the companies beneficially. The court rejected the defendants' claims that the shares were held on trust for them. Regarding the winding-up order, the court found that there was no evidence of deadlock that would justify such an order. The court concluded that there was no question of principle involved in this matter, and the plaintiff was entitled to the beneficial ownership of the shares.

The court ordered that the plaintiff was the beneficial owner of half the shares in each of the companies. The court also dismissed the application for a winding-up order, finding that the companies were not in a state of deadlock and that winding up was not just and equitable.

Orders