Walden v Foodco Group Pty Ltd - [2009] NSWSC 45

CITATION: Walden v Foodco Group Pty Ltd [2009] NSWSC 45

HEARING DATE(S): 12/02/09

JUDGMENT DATE :
12 February 2009

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

EX TEMPORE JUDGMENT DATE: 12 February 2009

DECISION: Application for interlocutory orders dismissed with costs

CATCHWORDS: CORPORATIONS - application for interlocutory orders pending hearing of oppression suit - application by plaintiff for order restraining other parties from acting upon and giving effect to resolution of general meeting removing plaintiff as a director - where alleged defect is deficiency of one, two or three days in notice period of twenty-one days - application for order that company produce certain documents and give certain information to defendant - reliance on s 198F - section confers right of inspection only - apparent attempt to obtain discovery and interrogatories - where notice to produce already answered - application for order compelling trustee of unit trust to make distributions to plaintiff - where dispute whether plaintiff still a unit holder - interlocutory order would be in the nature of final relief

LEGISLATION CITED: Corporations Act 2001 (Cth), ss 9, 198F, 232, 233, 290, 1322(1) and (2),

CATEGORY: Principal judgment

CASES CITED: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Re Pembury Pty Limited [1993] 1 Qd R 125

TEXTS CITED: Sir Frederick Jordan: “Chapters on Equity in New South Wales”

PARTIES: Jonathon Nigel Walden - Plaintiff
Foodco Group Pty Limited - First Defendant
Muffin Break Pty Ltd - Second Defendant
Jamaica Blue Pty Ltd - Third Defendant
Jahnus Pty Ltd - Fourth Defendant
Norman Fitzgerald - Fifth Defendant
Robert Symonds - Sixth Defendant
Sergio Infanti - Seventh Defendant
Stephen Kerr - Eighth Defendant
Waker Holdings Pty Limited - Ninth Defendant

FILE NUMBER(S): SC 6070/07

COUNSEL: Mr J J J Garnsey QC - Plaintiff
Mr B A J Coles QC - Defendants

SOLICITORS: Access Business Lawyers - Plaintiff
Freehills - Defendant

- 3 -

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

Barrett J

Thursday 12 February 2009

6070/07 Jonathon Nigel Walden v Foodco Group Pty Limited & 8 Ors

JUDGMENT

1 In these proceedings brought under ss 232 and 233 of the Corporations Act 2001 (Cth), the plaintiff makes allegations that the affairs of the four defendant companies have been conducted in a way that is oppressive to, or unfairly prejudicial to, the plaintiff or contrary to the interests of the members as a whole.

2 The plaintiff, as well as being a shareholder in the first defendant, Foodco Group Pty Limited, is or was a holder of units of the Foodco Unit Trust of which that company is the trustee. One of the issues in the proceedings is whether the plaintiff continues to be a unit holder or whether his units have been redeemed by the trustee.

3 The proceedings are set down for trial for three days commencing on 10 March 2009. I have today heard an interlocutory process filed by the…

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: [2009] NSWSC 45
Decision Date: 12 February 2009

CaseChat Overview and Summary

The proceedings in Walden v Foodco Group Pty Ltd involved the plaintiff, Walden, seeking various interlocutory orders against Foodco Group Pty Ltd and other parties involved in the company's governance. The central dispute was the plaintiff's application for an order to prevent the defendants from implementing a resolution that removed Walden as a director. Walden argued that the resolution was flawed due to a shortfall in the notice period required for such meetings. The application also sought orders for the company to produce specific documents and information, and for the trustee of a unit trust to make distributions to the plaintiff, contingent on the plaintiff's status as a unit holder.

The legal issues before the court included whether the plaintiff's application for restraining orders was appropriate, considering the alleged procedural defect in the notice period. Another issue was the validity of the plaintiff's request for document production and information, given the statutory basis for inspection rights under section 198F. Additionally, the court had to consider whether the plaintiff's application for distributions from the unit trust was suitable for interlocutory relief, as it would effectively be a final resolution of the dispute over the plaintiff's unit holdings.

The court determined that the application for restraining orders was not appropriate, as it would provide final relief on the issue of the notice period defect. Regarding the document production request, the court found that the plaintiff's application went beyond mere inspection and appeared to seek discovery and interrogatories, which were not permissible under the statutory framework. Finally, the court held that the application for distributions from the unit trust was not suitable for interlocutory relief, as it would result in final determination of the plaintiff's status as a unit holder. As a result, the court dismissed all of Walden's applications.

The court's final orders were that the plaintiff's applications for restraining orders, document production, and distributions from the unit trust be dismissed. The court found that the applications were either inappropriate for interlocutory relief or exceeded the statutory rights available to the plaintiff.

Orders