Cayenne Coal Pty Ltd as Trustee for Boardwalk Resources Trust v Whitehaven Coal Limited (No 2) [2022] NSWSC 1242

Supreme Court New South Wales

Medium Neutral Citation: Cayenne Coal Pty Ltd as Trustee for Boardwalk Resources Trust v Whitehaven Coal Limited (No 2) [2022] NSWSC 1242 Hearing dates: 30 & 31 August 2022 Decision date: 16 September 2022 Jurisdiction: Equity - Commercial List Before: Ball J Decision: (1) Order that Pok Hong Limited be joined as the fourth defendant in the proceedings; (2) Order that there be no order as to costs in relation to the fourth defendant's notice of motion dated 24 August 2022; (3) Order that the proceedings be dismissed; (4) Subject to order (5), order that the plaintiff pay the defendants' costs of the proceedings; (5) Grant liberty to any party to apply within 14 days of the date of this judgment for an order varying order (4). Catchwords: EQUITY — Trusts and trustees — Vesting orders — Whether order pursuant to s 71 of the Trustee Act 1925 (NSW) vesting in the plaintiff restricted shares in the first defendant should be made in circumstances where a mistaken share transfer is alleged CORPORATIONS — Shares — Rectification of share register — Whether alleged mistaken transfer of shares gives plaintiff an equity that the Court will protect by order pursuant to s 175(1) of the Corporations Act 2001 (Cth) CIVIL PROCEDURE — Parties — Misjoinder or non-joinder — Whether party seeking to be joined as fourth defendant is a necessary party to the proceedings — Whether the rights and liabilities of the proposed fourth defendant might be directly affected by the orders sought in the proceedings Legislation Cited: Corporations Act 2001 (Cth) Personal Property Securities Act 2009 (Cth) Trustee Act 1925 (NSW) Cases Cited: Andco Nominees Pty Ltd v Lestato Pty Ltd (1995) 126 FLR 404 Baird v BCE Holdings Pty Ltd (1996) 40 NSWLR 374; [1996] NSWSC 376 Bloomingdale Holdings Pty Ltd v 87 Stevedore Street Pty Ltd (2010) 6 ASTLR 271; [2010] VSC 268 Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2020] NSWSC 1778 Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677 Casella v Casella [1969] VR 49; VicRp 8 Dotter v Evans [1969] VR 41; VicRp 7 Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1; [1950] HCA 54 In the matter of Beechworth Land Estates Pty Ltd (in liq) and Griffith Estates Pty Ltd (in liq) [2018] NSWSC 1703 In the matter of Indoor Climate Technologies Pty Ltd [2019] NSWSC 356 In the matter of Mogul Stud Pty Ltd [2012] NSWSC 1639 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; [1996] FCA 870 Peninsula Gold Pty Ltd v Sunbeam Victa Holdings Ltd (1996) 20 ACSR 553; [1996] NSWSC 204 Re Bennett [1954] QWN 52 Re Hayward's Settlement (1884) 10 VLR (E) 38; [1884] VicLawRp 11 Re Purkiss [1999] 3 VR 223; VSC 386 Category: Principal judgment Parties: Cayenne Coal Pty Ltd as Trustee for Boardwalk Resources Trust (Plaintiff) Whitehaven Coal Limited (First Defendant) Certane CT Pty Ltd (Second Defendant) Boardwalk Resources Investments Pty Ltd (in liq) (Third Defendant) Pok Hong Limited (BVI Company No. 1636050) (Proposed Fourth Defendant) Representation: Counsel: P S Braham SC with B Hancock (Plaintiff) N J Kidd SC with I Ahmed (First Defendant) D R Sulan SC with L R P Rich (Proposed Fourth Defendant)