Garraway v Territory Realty Pty Ltd [2010] FCAFC 9

FEDERAL COURT OF AUSTRALIA

Garraway v Territory Realty Pty Ltd [2010] FCAFC 9 Citation: Garraway v Territory Realty Pty Ltd [2010] FCAFC 9

Appeal from: Territory Realty Pty Ltd v Garraway [2009] FCA 292

Parties: ALLAN CHARLES GARRAWAY, EXCESS PTY LTD (ACN 009 608 217), BISHOP ESTATE PTY LTD (ACN 070 455 837) and DUNDEE BEACH PTY LTD (ACN 009 631 136); v TERRITORY REALTY PTY LTD (ACN 009 644 339)

File number: NTD 11 of 2009

Judges: RYAN, RARES AND MCKERRACHER JJ

Date of judgment: 17 February 2010

Catchwords: CORPORATIONS - appeal – oppression – unfair discrimination of shareholders – sale of shares at a gross under value and unfair price – proposals not in the best interests of the company as a whole – unjustifiable management and consulting fees CORPORATIONS – order for buy out of company shares - Corporations Act 2001 (Cth), s 233(1) confers power to make a buy out order – power to make buy out order not to be read in a way that makes implications or imposes limitations not found in express words of s 233(1) – trial judge's discretionary judgment to make order for one party to buy the other out the least intrusive and most appropriate remedy CORPORATIONS – valuation of shares in buy out orders – court not obliged to accept the evidence of a particular valuer – whether failure to have regard to the occurrence of global financial crisis in fixing valuation date is an error by primary judge – court not obliged to require expert share valuation – primary judge's role not to direct either side on what evidence it should tender – primary judge not bound to include in his valuation a figure for the whole or a portion of any unjustified and excessive fees paid for services Held: appeal dismissed