Australian Co-operative Foods Limited v Dairy Farmers Milk Co-operative Limited [2007] NSWSC 1311

New South Wales Supreme Court

CITATION : Australian Co-operative Foods Limited v Dairy Farmers Milk Co-operative Limited [2007] NSWSC 1311

HEARING DATE(S) : 5 & 6 November 2007

JUDGMENT DATE : 23 November 2007

JUDGMENT OF : Hammerschlag J

DECISION : Defendant holds a relevant interest in 7.13% of the issued share capital of the plaintiff in contravention of s 289(1) of the Co-operatives Act 1992 (NSW). That interest is liable to forfeiture under s 290(1). Relief under s 1322 of the Corporations Act 2001 (Cth) against civil liability arising out of the contravention refused.

CATCHWORDS : CO-OPERATIVES – maximum permissible level of interest in shares under s 289(1) of the Cooperatives Act 1992 (NSW) ("the Act") – whether maximum of 20% of nominal value of issued share capital was increased by special resolution in respect of defendant by means of special postal ballot as permitted by s 289(3) of the Act – whether excess interest to be forfeited under s 290(1) of the Act – resolutions passed as part of scheme of arrangement under s 344(1) of the Act – whether such resolutions increased the maximum – matter of construction - CORPORATIONS – whether relief against civil liability arising out of contravention of the Act should be granted under s 1322 of the Corporations Act 2001 (Cth)

Co-operatives Act 1992 (NSW) LEGISLATION CITED : Corporations Act 2001 (Cth) Income Tax Assessment Act 1997 (Cth) Income Tax Assessment Act 1936 (Cth)

Toll( FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Wilkie v Gordian Runoff Limited (2005) 221 CLR 522 Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99 CASES CITED : Rural Press Ltd v ACCC (2003) 216 CLR 53 Bullock v Federated Furnishing Trades Society of Australia (No 1) (1985) 5 FCR 464 Ryan v Edna May Junction Gold Mining Company No Liability (1916) 21 CLR 487 Devereaux Holdings Pty Ltd v Pelsart Resources NL (No2) (1985) 9 ACLR 956