Tafemo Pty Ltd v Acoustica Pty Ltd [2024] NSWSC 844

Supreme Court New South Wales

Medium Neutral Citation: Tafemo Pty Ltd v Acoustica Pty Ltd [2024] NSWSC 844 Hearing dates: 29-30 April, 1, 3 May 2024 Date of orders: 11 July 2024 Decision date: 11 July 2024 Jurisdiction: Equity Before: Meek J Decision: Findings for the plaintiffs. Parties to bring in short minutes of order and address costs. Catchwords: COMMERCIAL — Claim for monies due arising out of historic commercial arrangements — Between 1997 and April 2001 the parties negotiated a proposed merger of P1's business into D's business and employment of P2 (P1's sole director) — An Income (Non-Capital) Redeemable Preference Share Agreement ("RPS Agreement") and attached Employment Agreement were prepared by solicitors and arrangements proposed for a settlement and exchange of executed agreements in early April 2001 — D attended by its then sole director — Dispute regarding whether anyone on the part of the plaintiffs attended — P2 subsequently employed in D's business — Part payments made by D referable to an initial $200,000 Redemption Amount over a 15 year period — Dispute as to whether D liable for non-payment of Redemption Amount in full, dividends during the redemption period and interest on dividend sum under the RPS Agreement — D disputes liability and claims alternative oral arrangements were made in November 2003 ("Oral Agreement") and the parties conducted their business affairs on the basis of assumptions consistent with the Oral Agreement ("estoppel claim") — D further asserts that the plaintiffs' claims are statute barred ("limitation claim") — Held plaintiffs' claims succeed and defences rejected EVIDENCE — Competence to give evidence — Witness in giving evidence exhibits a form of dysphasia — Whether witness competent to continue to be cross-examined CONTRACTS — Exchange of counterparts — Issue regarding when parties intend to be bound by contractual arrangements CORPORATIONS — Share capital — Classes of shares — Requirements for issuing redeemable preference shares CORPORATIONS — Directors — Means of passing and recording of resolutions ESTOPPEL — Conventional estoppel — No issue of principle LIMITATION DEFENCES — Whether claim for breach of contract barred as being out of time by operation of s 14(1)(a) Limitation Act 1969 (NSW) — Requirements for confirmation of cause of action under s 54 Limitation Act 1969 (NSW) WORDS AND PHRASES — Occam's razor Legislation Cited: Business Names Act 1962 (NSW) Companies Act 1981 (Cth) Companies (Application of Laws) Act 1981 (NSW) Companies (New South Wales) Code Corporations Act 1989 (Cth) Corporations Act 2001 (Cth) Corporations (New South Wales) Act 1990 (NSW) Evidence Act 1995 (NSW) Limitation Act 1969 (NSW) Cases Cited: Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 Burnside v Harrison Marks Productions Ltd [1968] 1 WLR 782 Cenric Group v TWT Property Group [2018] NSWSC 1570 Churchill v Connolly [2004] NSWCA 212 Clayton v Clayton [2023] NSWSC 399 Eccles v Bryant and Pollock [1948] 1 Ch 93 ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24; (2021) 388 ALR 128 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 In the matter of Inmart Investments Pty Ltd; In the matter of Marynen Manufacturing Pty Ltd [2023] NSWSC 1257 Junker v Hepburn [2010] NSWSC 88 Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2019] AC 119 Nagler v Volski (No 2) [2001] NSWSC 1106 Pet Tech Pty Ltd v Batson [2013] NSWSC 1954 Sheahan v Londish [2010] NSWCA 270 Sindel v Georgiou (1984) 154 CLR 661; [1984] HCA 58 Smith v Rynne [2005] NSWCA 77 Toole v Flexihire Pty Ltd (1991) 6 ACSR 455 Twigg v Twigg [2022] NSWCA 68; (2022) 402 ALR 119 White v Philips Electronics Australia Ltd (t/as Philips Healthcare) [2019] NSWCA 115 Texts Cited: Ford, Austin & Ramsay's Principles of Corporations Law (LexisNexis) Macquarie Dictionary, online ed Category: Principal judgment Parties: Tafemo Pty Ltd (First Plaintiff) Bela Takacs (Second Plaintiff) Acoustica Pty Ltd (Defendant) Representation: Counsel: D C Price (Plaintiffs) D Hand (Defendant)