In the matter of Lorebray Pty Ltd [2021] NSWSC 1533

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Lorebray Pty Ltd [2021] NSWSC 1533 Hearing dates: 23 November 2021 Date of orders: 23 November 2021 Decision date: 23 November 2021 Jurisdiction: Equity - Corporations List Before: Black J Decision: Court declares the appointment of the directors to have been valid and that resolutions passed at meetings with a quorum of two directors are not invalid on that basis. Catchwords: CORPORATIONS — Meeting of members — Resolutions — Where deed of settlement and release required the parties to take reasonable steps to ensure that certain persons would be directors of the company and associated companies — Inconsistency between constitution and shareholders agreement as to quorum — Where constitution provided for quorum of two directors — Where shareholders agreement provided for quorum of three directors, being all the company's directors — Whether company can hold quorate board meeting in the circumstances — Where one director representing a shareholder has resigned and replacement appointee does not accept appointment. CORPORATIONS — Directors and officers — Appointment, removal and retirement of directors — Where the relevant shareholders were parties to deed of settlement and release — Where deed of settlement required the execution of certain directorship documents — Whether s 249A of the Corporations Act 2001 (Cth) applies — Where general law concept of unanimous consent or s 1322(4) of the Corporations Act 2001 (Cth) otherwise applies. Legislation Cited: - Corporations Act 2001 (Cth), ss 249A, 1322 Cases Cited: - Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36 - Aveo Group Ltd v State Street Australia Ltd [2015] FCA 1019 - Citi Project Marketing (Qld) Pty Ltd v VG Projects Pty Ltd [2018] 1 Qd R 100; [2017] QSC 065 - Donaldson v Natural Springs Australia Ltd [2015] FCA 498 - Eastone Mining Pty Ltd v Eastone Holding Pty Ltd (2019) 142 ACSR 38; [2019] NSWSC 1850 - Elders Forestry Ltd v Bosi Security Services Ltd (2010) 242 FLR 360; (2010) 80 ACSR 122; [2010] SASC 223 - Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; (2014) 306 ALR 25; [2014] HCA 7 - Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61 - Hawcroft v Jamieson [2017] NSWSC 1478 - HDI Global Specialty SE v Wonkana No 3 Pty Ltd [2020] NSWCA 296 - Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1; (2006) 236 ALR 561; [2006] FCAFC 144 - Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; (2015) 325 ALR 188; [2015] HCA 37 - Re Lesso Building Material Trading (Sydney) Pty Ltd (admins apptd) [2018] NSWSC 1486 - Re Rectron Electronics Pty Ltd [2013] VSC 384 - Toll (FGCT) Pty Ltd, v Alphapharm Pty Ltd (2014) - 219 CLR 165; (2004) 211 ALR 342; [2004] HCA 52 - Weinstock v Beck (2013) 251 CLR 396; (2013) 93 ACSR 231; [2013] HCA 14 - Zhang v ROC Services (NSW) Pty Ltd (2016) 93 NSWLR 561; [2016] NSWCA 370 Category: Principal judgment Parties: Originating Process McMardi Pty Ltd (Plaintiff) Red Hill MCN Pty Ltd (First Defendant) Lorebray Pty Ltd (Second Defendant)