Sharif v Vitruvian Investments Pty Ltd (No 3) [2023] FCA 920

Federal Court of Australia

Sharif v Vitruvian Investments Pty Ltd (No 3) [2023] FCA 920 File number: WAD 127 of 2022 WAD 153 of 2022

Judgment of: COLVIN J

Date of judgment: 8 August 2023

Catchwords: CORPORATIONS - where shares cancelled without complying with the statutory procedure for a selective reduction of capital - where relief sought by company under s 1322 of the Corporations Act 2001 (Cth) for Court to grant relief - where shareholder claims conduct in cancelling shares and other conduct to be oppressive under s 232 of the Corporations Act 2001 (Cth) CORPORATIONS - where plaintiff (in WAD153/2022) seeks relief under s 1322 of the Corporations Act 2001 (Cth) - where plaintiff claims statutory relief in the nature of rescission appropriate - where plaintiff alleged misleading and deceptive conduct - where plaintiff alleged agreement made on basis of a qualification the defendant did not have - where such factual finding not made - where complete disregard for statutory requirements - where continuing and blatant disregard for statutory requirements demonstrates dishonesty - where plaintiff acted as if statutory rescission was a self-help remedy - where plaintiff took no steps after being informed of failure to comply with statutory procedure - where not case that there is no substantial injustice - where significant delay in bringing claim - where requirements of s 1322 not met - claim dismissed with costs CORPORATIONS - where plaintiff (in WAD127/2022) alleges cancellation of shares and other conduct was oppressive - where cancellation of shares found to be oppressive - where evidence of plan to oppress plaintiff - where only reason for cancellation is alleged misleading and deceptive conduct said to have induced agreement to issue shares - where alleged misleading and deceptive conduct not established - oppression established by company, director and shareholder cancelling shares and then issuing further shares to dilute shareholding if shareholding subsequently reinstated - appropriate relief is to require benefitting shareholding to transfer shares to the plaintiff - claim upheld