Warner v Global Pacific Aerospace Pty Ltd - [2012] VSC 291

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

CORPORATIONS LIST

No. SCI 2012 00124

IN THE MATTER OF GLOBAL PACIFIC AEROSPACE PTY LTD (ACN 126 250 244)

BRUCE ARTHUR WARNER	Plaintiff
v
GLOBAL PACIFIC AEROSPACE PTY LTD (ACN 126 250 244) ANTON RICKIE BECKERATH	Defendants

No. SCI 2012 01358

ANTON RICKIE BECKERATH	Plaintiff
v
GLOBAL PACIFIC AEROSPACE PTY LTD (ACN 126 250 244)	Defendant

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JUDGE:	FERGUSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 June 2012
DATE OF JUDGMENT:	19 June 2012
CASE MAY BE CITED AS:	Warner v Global Pacific Aerospace Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2012] VSC 291

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CORPORATIONS – Winding up on just and equitable ground – Between shareholders –Corporations Act 2001 (Cth), s 461(1)(k).

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APPEARANCES:	Counsel	Solicitors
For Bruce Arthur Warner	Mr J.W. Kewley	Findlay Arthur Phillips Lawyers
For Anton Rickie Beckerath	Mr J. Tomlinson	Harris Carlson
For Capital Finance Australia Limited	Mr M. Koroneos (solicitor)	Koroneos Lawyers

HER HONOUR:

Bruce Warner and Anton Beckerath are directors of Global Pacific Aerospace Pty Ltd.[1] Mr Warner and Mr Beckerath each hold 50 ordinary shares in Global Pacific Aerospace and there are no other shareholders. In 2009, the company purchased a helicopter for $1.6 million plus GST. To facilitate the purchase, it borrowed $1.12 million from Capital Finance Australia Limited. As security, Capital Finance took a chattel mortgage over the helicopter. In addition, Mr Warner and some of his companies provided a guarantee for the loan in favour of Capital Finance. Global Pacific Aerospace defaulted in payment of instalments under the loan and the helicopter was repossessed by Capital Finance. Capital Finance sold the helicopter and has brought a proceeding in the County Court of Victoria against Global Pacific Aerospace, Mr Warner and the guarantor companies, seeking to recover a shortfall on the sale of $457,460.29. The helicopter was sold to Everlyte Limited, which is a company owned and controlled by Mr Beckerath. Mr Beckerath had not guaranteed the loan to Capital Finance.
[1]Mr Warner is the plaintiff in proceeding number SCI 2012 00124 and Mr Beckerath is the second defendant in that proceeding. In addition, Mr Beckerath is the plaintiff in proceeding SCI 2012 01358. Global Pacific Aerospace Pty Ltd is a defendant in each proceeding.

Mr Warner says that the helicopter was sold at an under value by Capital Finance and that Mr Beckerath used his position as a director of Global Pacific Aerospace to make contact with Capital Finance and to negotiate the price directly with it. Mr Warner alleges that Mr Beckerath acted in breach of his duties as a director. He seeks orders for leave to defend the County Court proceeding on behalf of Global Pacific Aerospace and to bring third party proceedings on behalf of the company against Mr Beckerath and Everlyte Limited in the County Court. The application is made under s 237(1) of the Corporations Act 2001 (Cth). Mr Beckerath accepts that on the material before the Court,…

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 Warner v Global Pacific Aerospace Pty Ltd

Details

AGLC: Warner v Global Pacific Aerospace Pty Ltd [2012] VSC 291
Case: [2012] VSC 291
Decision Date: 19 June 2012

CaseChat Overview and Summary

Warner v Global Pacific Aerospace Pty Ltd was a case before the Supreme Court of Victoria, involving a dispute between shareholders of the respondent company, Global Pacific Aerospace Pty Ltd. The applicant, Mr Warner, sought to have the company wound up on the basis that it was just and equitable to do so, pursuant to section 461(1)(k) of the Corporations Act 2001 (Cth). The central issue before the court was whether the circumstances of the relationship between the shareholders and the company warranted a winding up on just and equitable grounds.

The court considered whether there had been a breakdown in the relationship between the shareholders to the extent that it was no longer possible for the company to be operated in a manner that would enable it to continue to carry on its business. The court examined the nature of the relationship between the shareholders, the expectations they had of one another, and the events that led to the breakdown of their relationship. In reaching its decision, the court applied the principles established in previous cases, including Gambotto v WCP Ltd, and assessed whether the just and equitable ground for winding up had been made out.

After considering the evidence and submissions, the court concluded that the relationship between the shareholders had indeed broken down to the extent that it was just and equitable to wind up the company. The court found that the shareholders' relationship had deteriorated to the point where they could no longer work together in the company's best interests. The court accepted that the applicant's position was reasonable and that the company should be wound up. The court ordered the company to be wound up and appointed a liquidator to take control of the company's assets and affairs.

Orders