WALHALLA MINING CO NL v EVANS [1990] NSWCA 181

WALHALLA MINING CO NL v EVANS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and MEAGHER JJA 26 and 27 February 1990, 27 February 1990 [1990] NSWCA 181

SPECIFIC PERFORMANCE — company 1 engages itself to pay amounts owing on shares in company 2 by two directors of company 2 specific performance ordered by trial judge — on appeal, held, that circumstances of case justified granting of the equitable remedy. APPEAL — application by appellant to argue ground not raised at first instance — application refused — reference to practical necessity of firm adherence to rules governing attempts to raise new points on appeal.

Priestley JA This is an appeal from orders made by the Chief Judge in the Commercial Division on 20 February last. His Honour heard the proceedings as a matter of urgency and the appeal has been dealt with on the same basis. Unless the court decides the appeal immediately, there is a distinct chance that the point at issues between the parties will be decided by the passing of time rather than the court, although it must be said that there is another possibility too: that the apparently deteriorating financial position of the parties rather than any orders of the court will decide what happens to the shares which are at the centre of the proceedings.

The appeal arises from the following circumstances: as at 28 February 1989 Messrs Evans and Morris, who were the plaintiffs in the proceedings decided by Rogers J, were and had for some time been directors of Forsayth NL. Walhalla Mining Co NL held shares in Forsayth. So did Laridby Pty Ltd, a wholly owned subsidiary of Walhalla. A company incorporated in Canada, First Toronto Mining Corporation, directly or indirectly held ninety-six per cent of the shares in Walhalla. Forsayth's shares at that time were apparently selling at $2.10 each. Both the plaintiffs were invited by Mr Byrne, a director of Laridby, to buy $1,500,000 shares each in Forsayth from Laridby at $1.90 per share as an incentive for them as joint managing directors of Forsayth. On 28 February 1989, each of them purchased 1,500,000 shares from Laridby at the suggested price of $1.90 per share. There is no direct evidence of any other terms of the sale, nor of arrangements between the plaintiffs and Laridby of the way in which the sale price was to be financed.