The University of Western Australia v Gray (No 4) [2006] FCA 1350

FEDERAL COURT OF AUSTRALIA

The University of Western Australia v Gray (No 4) [2006] FCA 1350

CORPORATIONS – appointment of receiver under Federal Court of Australia Act – pending proceedings re ownership of intellectual property developed by former university academic – shares in publicly listed corporate owner of intellectual property held by Cancer Research Institute – non-profit incorporated association – settlement of proceedings between University and association – disputed shares to be applied to cancer research and education purposes – challenge to validity of Board of association and of settlement agreement – new Board elected – potential conflict of interest – defendant and solicitor on new Board of association – receiver appointed to shares – receiver empowered to call general meeting THE UNIVERSITY OF WESTERN AUSTRALIA v BRUCE NATHANIEL GRAY, SIRTEX MEDICAL LIMITED (ACN 078 166 122) AND CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005) WAD 292 OF 2004

FRENCH J

5 OCTOBER 2006

PERTH IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 292 OF 2004

BETWEEN: THE UNIVERSITY OF WESTERN AUSTRALIA

Applicant

AND: BRUCE NATHANIEL GRAY

First Respondent

SIRTEX MEDICAL LIMITED (ACN 078 166 122)

Second Respondent

CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005)

Third Respondent

JUDGE: FRENCH J DATE OF ORDER: 5 OCTOBER 2006

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. Mr Mark Conlon of RSM Bird Cameron Partners be appointed, until further order of this Court, as receiver of the shares in the second respondentheld by the third respondent. 2. The receiver shall, during the currency of this order, have the power to exercise on behalf of the third respondentall of its rights as a shareholder in the second respondent. 3. The receiver shall be entitled to investigate the enforceability of the document entitled 'Agreed Settlement Terms' signed on behalf of the applicant and the third respondentand dated 31 July 2006 and report to a general meeting of the members of the third respondent to be convened to consider that report. 4. A meeting of the members of the third respondent shall be convened by the receiver as soon as practicable and he shall have all the powers of the Board and a member of the third respondent for that purpose in order to enable the meeting to consider and determine whether the agreement should be ratified or an alternative course taken in relation to the resolution of the litigation. 5. The receiver may obtain and provide to members of the third respondent independent legal advice in order to enable him to properly discharge his functions under this order. 6. The receiver and manager shall be entitled to: (a) reasonable remuneration and reasonable costs and expenses properly incurred by him in the performance of his duties and the exercise of his powers as receiver; and (b) to an indemnity out of the assets of the third respondent in respect of such costs and expenses. 7. The orders of the Court on 2 June 2006 and 7 July 2006 be varied to the extent necessary to give effect to Order 6. 8. The receiver and any other party have liberty to apply to the Court to vary or discharge this order or for other directions.