WCP LTD v GAMBOTTO and ANOR [1993] NSWCA 285

WCP LTD v GAMBOTTO and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 26 May 1993, 26 May 1993

[1993] NSWCA 285

INJUNCTIONS — preservation of status quo pending special leave application — lack of prejudice to opponent. INJUNCTIONS — third parties to action.

Clarke JA There is before the court an amended notice of motion filed by Giancarlo Gambotto and Eliana Sandri (whom I shall call "the claimants"). They have instituted proceedings in the Equity Division of this Court and were successful in obtaining a declaration and order from McLelland J, the effect of which was that article 20A in the Articles of Association of the defendant were invalid.

The defendant in the court below, WCP Limited (whom I shall call "the opponent"), appealed from that decision and in due course this Court reversed his Honour and made an order declaring that the insertion of Article 20A in the opponent's Articles of Association were valid and effective.

The claimants have filed the notice of motion seeking an order to secure their position, to the intent that their proposed application for special leave to appeal to the High Court not be rendered nugatory. As part of that motion they seek an order that Acmex Investments No 4 Pty Ltd be added as a defendant in these proceedings and a respondent to the appeal which has, of course, been heard. I would read that application as meaning that the claimants seek an order that Acmex be added as an opponent in these proceedings.

The evidence demonstrates that once this court delivered its judgment on 7 May the shares which had been in contention were transfered by the opponent to Acmex and appropriate notices given. There can no longer be an order restraining the opponent WCP from transfering the shares to Acmex but what the claimants seek is orders restraining Acmex from dealing with the shares and restraining WCP from registering any transfer by Acmex.