Shearwood (Trustee), in the matter of Allied Resource Partners Pty Ltd v Allied Resource Partners Pty Ltd [2017] FCA 1451

FEDERAL COURT OF AUSTRALIA

Shearwood (Trustee), in the matter of Allied Resource Partners Pty Ltd v Allied Resource Partners Pty Ltd [2017] FCA 1451 File number: NSD 1031 of 2017

Judge: MARKOVIC J

Date of judgment: 6 December 2017

Catchwords: CORPORATIONS – application for declarations and orders concerning composition of company board – where plaintiff purportedly removed as a director of company – whether plaintiff removed in accordance with shareholders' agreement and company constitution – whether plaintiff remains a director of the company – where defendant relies on s 1322 of the Corporations Act 2001 (Cth) – whether procedural irregularities in removal of director – whether to exercise discretion that removal not invalid – application allowed PRACTICE AND PROCEDURE – application for leave to discontinue part of proceeding – terms of grant of leave to discontinue – costs of discontinued claims – where plaintiff sought to discontinue claims on second day of hearing – whether to award costs of discontinued claims on indemnity basis or party and party basis

Legislation: Corporations Act 2001 (Cth) s 1322(2), 1322(4), 1322(6) Federal Court Rules 2011 (Cth) r 26.12

Cases cited: Colgate Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 Cordiant Communications (Australia) Pty Ltd v The Communications Group Holdings Pty Ltd (2005) 55 ACSR 185; [2005] NSWSC 1005 Londish v Sheahan & Lock in Re Valofo Pty Ltd [2009] NSWSC 1175 McKenzie v State of South Australia [2006] FCA 891 Sheahan v Londish (2010) 80 ACSR 337; [2010] NSWCA 270 Weinstock v Beck (2013) 251 CLR 396 Wotton v State of Queensland [2009] FCA 758