Helen Anne Henry & Ors v Richard James Creswick [2009] NSWDC 41

New South Wales District Court

CITATION: Helen Anne Henry & Ors v Richard James Creswick [2009] NSWDC 41

HEARING DATE(S): 18/02/09 - 19/02/09, 27/2/09, 16/03/09

JUDGMENT DATE: 16 March 2009

JURISDICTION: Civil

JUDGMENT OF: Rolfe DCJ

DECISION: See paragraphs 48-50 of Judgment

CATCHWORDS: Joint Venture Company - Alleged Verbal Agreement amongst shareholders arising out of discharge of company debt - Consideration of background facts and surrounding circumstances where no contemporaneous record kept and critical witness had died.

LEGISLATION CITED: Corporations Act 2001 Real Property Act 1900

PARTIES: Helen Anne Henry as Representative of the Estate of Ian Russell Henry & Others (Plaintiff) Richard James Creswick (Defendant)

FILE NUMBER(S): 1558/07

COUNSEL: D Ash (Plaintiffs) J White (Defendant)

JUDGMENT

1 The plaintiffs in these proceedings have brought an action against the defendant for breach of an oral agreement which they say was made between the parties in August 2002.

2 Helen Anne Henry ("Mrs Henry"), as representative of the estate of Ian Russell Henry ("Mr Henry"), is the first plaintiff in these proceedings.

3 Mr Henry was a director of Bintrak Systems Pty Limited ("Bintrak") and a director and shareholder of Tingara Pty Limited ("Tingara"). Tingara was a 50% shareholder in Prosna Pty Limited ("Prosna").

4 The second plaintiff is Mrs Henry in her own right. Mrs Henry was also a director and shareholder of Tingara.

5 The third plaintiff is Stevesmar Pty Limited ("Stevesmar"). Stevesmar was the other 50% shareholder in Prosna.

6 The fourth plaintiff, John David Robson ("Mr Robson") was the shareholder and director of Stevesmar. Mr Robson was also a director of Bintrak.