The Food Improvers Pty Limited v BGR Corporation Pty Ltd (No 4) [2007] FCA 220

FEDERAL COURT OF AUSTRALIA

The Food Improvers Pty Limited v BGR Corporation Pty Ltd (No 4) [2007] FCA 220 CORPORATIONS – winding up – appointment of liquidator – where appropriate – where Court can make appropriate orders in relation to a company under ss 233 and 461(1)(k) of the Corporations Act 2001 (Cth) – whether Court has power to set aside a resolution made in circumstances where there has been oppression and propound a substitute resolution in its place – costs – indemnity costs – in circumstances where defendant has failed to accept draft deed of settlement – requirement of unreasonableness Held – liquidator appointed – oppressive resolution set aside and substitute resolution propounded – application for indemnity costs dismissed Corporations Act 2001 (Cth) ss 233, 461(1)(k) Ngurli Ltd v McCann (1953) 90 CLR 425 applied Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281 applied Singleton v Macquarie Broadcasting Holdings Ltd (unreported, 22 November 1989; BC8902891) distinguished Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285 applied THE FOOD IMPROVERS PTY LTD (ACN 003 474 280) AND ANOR v BGR CORPORATION PTY LTD (ACN 059 820 807) AND ORS NSD 1140 OF 2005

RARES J

28 FEBRUARY 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1140 OF 2005

BETWEEN: THE FOOD IMPROVERS PTY LTD (ACN 003 474 280)

First Plaintiff

JOHN STEPHEN BAX

Second Plaintiff

AND: BGR CORPORATION PTY LTD (ACN 059 820 807)

First Defendant

THE TRIAD HEALTH PRODUCTS GROUP OF COMPANIES PTY LTD (ACN 002 688 897)

Second Defendant

CORDATO PARTNERS (SERVICES) PTY LTD

(ACN 075 518 964)

Third Defendant

MAIN CAMP HOLDINGS PTY LIMITED (ACN 061 573 804)

Fourth Defendant