In the matter of Jervois Mining Ltd [2016] NSWSC 1650 (23 November 2016)

CORPORATIONS – Membership, rights and remedies – Members’ remedies and internal disputes – Meetings – Calling of extraordinary general meeting chaired by independent Court-appointed chairman.  Unled.  I acted for a shareholder of a public company that was part of a group that had convened an extraordinary general meeting under s 249F.  

In the matter of Alsafe Security Products Pty Ltd atf the Alsafe Trust (in liquidation) [2016] NSWSC 575 (6 May 2016)

PROCEDURE — Costs — Order sought for costs on indemnity basis — where Plaintiffs’ sought indemnity costs on basis of unsuccessful Defendant’s rejection of offer of compromise or under Calderbank principles – where Plaintiffs’ offer included an amount as to costs – whether offer of compromise is valid where it included amount as to costs – whether Plaintiffs’ offer warrants indemnity costs under Calderbank principles – whether r 42.34 of the Uniform Civil Procedure Rules 2005 (NSW) has consequence that Plaintiffs should not be awarded costs.

In the matter of Alsafe Security Products Pty Ltd atf the Alsafe Trust (in liquidation) [2016] NSWSC 428 (14 April 2016)

CORPORATIONS — Voidable transactions — Unfair preferences - Application for orders under s 588FF of the Corporations Act 2001 (Cth) – where Defendant relied on defence under s 588FG(2) of the Corporations Act 2001 (Cth) – whether defence under s 588FG(2) of the Corporations Act 2001 (Cth) is established.

Ocean Shores Community Association Inc v Byron Shire Council (No 1) [2015] NSWLEC 193

INTERLOCUTORY RELIEF - exercise of discretion to grant interlocutory injunction ex parte

Administrative Arrangements (Administrative Changes–Ministers and Public Service Agencies) Order 2014, Byron Local Environmental Plan 1998, Byron Local Environmental Plan 2014 (Amendment No 2), Constitution Act 1902, s 50E, Local Government Act 1993, Uniform Civil Procedure Rules 2005

Chen v Liu [2015] NSWSC 161

Unled - Corporations Act 2001 – section 1322(4) orders – where association incorporated under the Associations Incorporation Act 2009 (NSW) – where association at deadlock between two factions vying for control – where neither side’s evidence satisfactory – orders on the just and equitable ground – where each faction seeks relief under section 1322(4) – whether relief to be granted on condition that the association hold an extraordinary general meeting for the purpose of electing the committee and its office bearers – costs – whether parties entitled to recoup legal costs from accounts of the association,  applicability of Corporations Act 2001 to associations –fiduciary duties of office bearers – whether expending association funds on litigation to determine control of the association amounts to breach of fiduciary duties.

Curtis v Singtel Optus Pty Ltd [2014] FCAFC 144

BANKRUPTCY – validity of a bankruptcy notice electronically issued by the Official Receiver – whether essential requirement for final judgment/order to be attached at time of issue – whether judgment/order “attached” at time of electronic issue – meaning of “attached” – substantial versus strict compliance – whether defect in bankruptcy notice can be cured by s 306(1) of the Bankruptcy Act 1966(Cth) – appeal dismissed

Hasler v Singtel Optus Pty Ltd;Curtis v Singtel Optus Pty Ltd; Singtel Optus Pty Ltd v Almad Pty Ltd [2014] NSWCA 266; (2014) 311 ALR 494; (2014) 87 NSWLR 609; (2014) 101 ACSR 167

APPEAL - challenge to findings of fact - deference to trial judge

EQUITY - fiduciary duty - employee in position of conflict - accessory liability for knowing assistance in dishonest and fraudulent design - meaning of "dishonest and fraudulent design" - whether necessary to show knowledge of absence of informed consent - measure of equitable compensation

FRAUD - pleadings and course of trial - whether finding of dishonesty available

PRECEDENTS - departure from decision of another intermediate appellate court - where not necessary to do so in order to resolve appeal - where issue was important, causing inconsistent formulations of principle - precedential status of a decision which did not itself develop the common law but merely explained decision of High Court - comity

Tarrant and Australian Securities and Investments Commission [2013] AATA 926

CORPORATIONS LAW – banning order – failure to comply with a financial services law – failure to have reasonable basis for financial advice – failure to disclose information about remuneration – false or misleading statements in respect of financial products – misleading or deceptive conduct in respect of a financial product or service

CORPORATIONS LAW – banning order – length of banning order – no findings of fraud or dishonesty – contraventions serious and caused loss – applicant’s lack of insight into gravity of breaches – seven year banning order affirmed

PRACTICE AND PROCEDURE – government policy – ASIC Regulatory Guide – whether Tribunal must apply policy unless policy unlawful or there are cogent reasons to the contrary – Tribunal not precluded from giving no weight to policy in a particular case – policy found to be sensible and calibrated – policy applied by Tribunal 

Save Little Manly Beach Foreshore Incorporated v Manly Council (No 2) [2013] NSWLEC 156

JUDICIAL REVIEW - claim to prevent council selling land on basis that under Local Government Act 1993 it is classified as community land, which council has no power to sell - re land vested in council as at 1 July 1993, whether 1994 resolution classifying it as operational land beyond power because deemed to be community land under cl 6(2)(b) Sch 7 - whether presumption rebuttable and rebutted - whether advance public notice of 1994 resolution as required by s 34 - re land acquired by Council after 1 July 1993 by agreement as contemplated by local environmental plan and Land Acquisition (Just Terms compensation) Act 1919, whether 1998 resolution classifying it as operational land beyond power because inconsistent with terms of trust or instrument executed by transferor as provided in s 31(3)(b) - whether advance public notice of 1998 resolution as required by s 34 - whether resolutions invalid under Project Blue Sky principles - whether Council has defence under s 54 on basis of power to issue conclusive certificate as to classification given that s 53 land register records the subject land as operational - whether proceedings barred by time limitation in s 729 - whether relief should be refused in the Court's discretion.