In the matter of Beverage Freight Services Pty Ltd [2022] NSWSC 874

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Beverage Freight Services Pty Ltd [2022] NSWSC 874 Hearing dates: 4, 5, 6, 7, 11, 12 and 13 May, 2 June 2021 Date of orders: 1 July 2022 Decision date: 01 July 2022 Jurisdiction: Equity - Corporations List Before: Williams J Decision: See paragraph [410] Catchwords: CONTRACT – oral agreement – identity of the parties to oral agreement – persons alleged to have breached contract were not parties to the contract PARTNERSHIPS – whether shareholders in company and/or persons standing behind shareholders were in partnership – where company established as structure through which each shareholder would continue to operate its own freight services business to a particular client who wished to deal with one entity rather than several entities – where company not intended to make profit – no partnership EQUITY – fiduciary duties – whether directors of company owed fiduciary duties to one of the company's shareholders and/or one of the principals standing behind that shareholder – no fiduciary duties owed Legislation Cited: Corporations Act 2001 (Cth), ss 180-184 and 191 Partnership Act 1892 (NSW), ss 1, 2, 32 Cases Cited: Air Tahitii Nui Pty Ltd v McKenzie (2009) 77 NSWLR 299; [2009] NSWCA 429 Barnes v Addy (1874) LR 9 Ch App 244 Brunninghausen v Glavanics (1999) 46 NSWLR 538; [1999] NSWCA 199 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184; (2013) 29 BCL 329 Crawley v Short [2009] NSWCA 410; (2009) 262 ALR 654 Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158 Eaton v Rare Nominees Pty Ltd [2019] 2 Qd R 222; (2019) 373 ALR 386; [2019] QCA 190 at [62] ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gulf Pacific Pty Ltd v Londish [1992] FCA 502 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 In the matter of David Ireland Productions Pty Ltd [2014] NSWSC 1411 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Lawfund Australia Pty Ltd v Lawfund Leasing Pty Ltd [2008] NSWSC 144 Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 Nassar v Innovative Precasters Group Pty Ltd [2009] NSWSC 342 Re BBY Limited (Receivers and Managers Appointed) (in liq) and BBY Holdings Pty Ltd (Receivers and Managers Appointed) (in liq) (No 2) [2022] NSWSC 30 Streetscape Projects (Australia) v City of Sydney (2013) 85 NSWLR 196 United Dominions Corporation Limited v Brian Pty Ltd (1985) 157 CLR 1 Warner Capital Pty Ltd v Shazbot Pty Ltd [2020] NSWCA 121 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: The Honourable Justice Gageler in "Expansion of the Fiduciary Paradigm into Commercial Relationships: The Australian Experience" in P Devonshire and R Havelock (eds), The Impact of Equity and Restitution in Commerce (Hart Publishing, Oxford, 2018) Category: Principal judgment Parties: J and E Vella Pty Ltd (ACN 077 719 049) (First Plaintiff) Joseph Gregory John Vella (Second Plaintiff) Brian Charles Hobson (First Defendant) Hynadam Pty Ltd (ACN 002 478 828) (Second Defendant) Brett Soper (Third Defendant) Mechita Pty Ltd (ACN 063 519 915) (Fourth Defendant) Beverage Freight Services Pty Ltd (ACN 097 919 769) (Fifth Defendant) Beverage Distribution Australia Pty Ltd (ACN 160 140 287) (Sixth Defendant) Hynadam Nominees Pty Ltd (ACN 160 135 900) (Seventh Defendant) McIntyre Holdings NSW Pty Ltd (ACN 160 137 271) (Eighth Defendant) Representation: Counsel: Mr G Sirtes SC with Mr D Birch (Plaintiffs) Mr M Ashhurst SC with Ms M Castle (Defendants) Solicitors: Yates Beaggi Lawyers (Plaintiffs) McEvoy Legal (Defendants) File Number(s): 2015/157614 Publication restriction: N/A