Gibbins Investments Pty Ltd v Savage [2011] FCA 527

FEDERAL COURT OF AUSTRALIA

Gibbins Investments Pty Ltd v Savage [2011] FCA 527 Citation: Gibbins Investments Pty Ltd v Savage [2011] FCA 527

Parties: GIBBINS INVESTMENTS PTY LTD (ACN 122 828 369) v SAMUEL SAVAGE (AS EXECUTOR OF THE ESTATE OF JOHN THOMAS SAVAGE (DEC'D)), TERESA CLEGG (AS EXECUTOR OF THE ESTATE OF JOHN THOMAS SAVAGE (DEC'D)), MARYELLEN QUIGLEY (AS EXECUTOR OF THE ESTATE OF JOHN THOMAS SAVAGE (DEC'D)) and VERMILLION RESOURCES PTY LTD (ACN 145 983 508)

File number: VID 1071 of 2010

Judge: GORDON J

Date of judgment: 19 May 2011

Catchwords: CORPORATIONS – Constitution – statutory contract between members – whether Constitution can be varied by implied agreement of members – doctrine of unanimous assent – applicable principles – pre-emptive rights – purported sale of shares to third party – failure to give notice under pre-emptive rights clause of Constitution – whether compliance with pre-emptive rights clause was waived by members – whether members agreed not to rely on pre-emptive rights – election between inconsistent rights – applicable principles – whether members elected to not insist on their pre-emptive rights – Corporations Act 2001 (Cth) ss 9, 140, 249L ESTOPPEL – applicable principles – whether promissory estoppel or estoppel by convention made out CONTRACT – whether failure to perform obligations under Heads of Agreement – repudiation – applicable principles – whether acceptance of repudiation is made out TRADE PRACTICES – misleading and deceptive conduct – Trade Practices Act 1974 (Cth) s 52