DERRAWEE PASTORAL COMPANY PTY LIMITED v McCONOCHIE [1995] NSWCA 123

DERRAWEE PASTORAL COMPANY PTY LIMITED vy McCONOCHIE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA 24 February 1995

[1995] NSWCA 123

Handley JA. On 2 November 1994 the claimants appealed as of right from orders of Bryson J made on 28 October 1994 and on 23 December they filed an amended notice of appeal. On 4 January 1995 they applied by notice of motion for orders that the judgment entered on 30 June 1994 and the orders made by Bryson J on 9 December 1994 be stayed pending the determination of the appeal.

What Bryson J described as 'the principal proceedings' were commenced on 4 October 1990. The plaintiffs, shareholders in the appellant company, claimed that it should be wound up or other relief granted on the ground that its affairs were being conducted in a manner which was oppressive, prejudicial or unfairly discriminatory. The proceedings were based on s 320 of the Companies Code then in force. The relief which the Court can grant in such proceedings includes (s 320(2)(e)) an order for the purchase of the shares of any member by another member.

On 22 October 1993 Windeyer J made orders in 'the principal proceedings' in terms of agreed short minutes. These noted an agreementthat the second defendant purchase the shares of the plaintiffs. Paragraph 2 directed that the price to be paid should be the value of the shares as determined by an accountant chosen by the parties. Paragraph 3 contained an order that the second defendant complete the purchase within 21 days of the accountant's report. Other paragraphs provided that there should be no order as to costs, that there should be liberty to apply on seven (7) days notice, and that the proceedings should be otherwise dismissed.

The valuer in his report dated 8 June 1994 valued the plaintiffs" shares as at 22 October 1993 at $316,772. The second defendant did not complete within 21 days. On 30 June the plaintiffs purported to enter judgment for $316,772. On 4 July they issued execution. On 28 July the company and the second defendant applied by notice of motion for orders setting aside the judgment and the writ of execution and a declaration that the valuation was invalid. The motion was heard by Bryson J and on 28 October he ordered that it be dismissed with costs.