Cassegrain & anor v CTK Engineering Pty Limited & anor [2004] NSWSC 1068

New South Wales Supreme Court

CITATION : Cassegrain & anor v CTK Engineering Pty Limited & anor [2004] NSWSC 1068 HEARING DATE(S) : 5 and 8 November 2004 JUDGMENT DATE : 12 November 2004 JURISDICTION: Equity Division JUDGMENT OF : Windeyer J at 1 DECISION : Provisional liquidator appointed. Security ordered.

CATCHWORDS : CORPORATIONS - interlocutory application for appointment of provisional liquidator - principal proceedings claiming winding up for oppression on just and equitable ground - COSTS - security for costs - plaintiffs outside Australia - limitations on order CASES CITED : Zempilas v J N Taylor Holdings Limited (No 2) (1990) 55 SASR 103 Thomas Jean Roger Cassegrain (First Plaintiff) PARTIES : Emilie Cassegrain (Second Plaintiff) CTK Engineering Pty Ltd (First Defendant) Claude George Rene Cassegrain (Second Defendant) FILE NUMBER(S) : SC 4277 of 2004 COUNSEL : Mr R S Hollo (Plaintiffs) Mr C RC Newlinds SC with him Mr C F Donohoe (Defendants) SOLICITORS : TurksLegal (Plaintiffs) Priest McCarron (Defendants)

- 10 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

FRIDAY 12 NOVEMBER 2004

4277/04 THOMAS JEAN ROGER CASSEGRAIN & ORS V CTK ENGINEERING PTY LTD & ORS JUDGMENT Outline 1 This judgment deals with two interlocutory applications. The first is by the plaintiffs who seek the appointment of a provisional liquidator to the first defendant, CTK Engineering Pty Limited (CTK). The second is by CTK seeking security for costs from the plaintiffs. In the substantive proceedings the plaintiffs, by originating process filed on 2 August 2004, seek an order for the winding up of CTK on the just and equitable ground and shortly put for oppression. Other orders are sought but they are of no consequence here. Facts 2 There are two classes of shares in CTK. The holders of the "A" class shares have the right to appoint directors (who must each hold an "A" class share) and the right to vote at meetings of CTK. They control it. Holders of the "B" class shares have the right to receive financial reports and until recently the right to attend meetings, but not to vote at those meetings. They have the right to receive such dividends as are declared by the directors and the right to participation in the distribution of surplus assets on winding up. 3 Most of the background and history relevant here is described in some detail in the judgment of Barrett J in Dunn v CTK Engineering Pty Ltd [2002] NSWSC 365. I will not repeat it, as this is an interlocutory matter. 4 The plaintiffs each hold 551 "B" class shares in CTK. That total of 1,102 represents 59% of the "B" class shares. The second defendant, Claude Cassegrain holds one "A" class share and 146 "B" class shares. The other "B" class shareholders, apart from the second defendant and a Mrs Cameron have signed a document stating that they support the plaintiffs in these proceedings and in the application for appointment of a provisional liquidator. 5 There are a number of facts put forward by the plaintiffs to support their claim in the substantive proceedings for winding up. The main matters are: