Scottish & Colonial Ltd v Australian Power & Gas Co Ltd & Ors [2007] NSWSC 1266

(2007) 25 ACLC 1,497 Reported Decision : 65 ACSR 313 [2008] ALMD 1643 215 FLR 100

New South Wales Supreme Court

CITATION : Scottish & Colonial Ltd v Australian Power & Gas Co Ltd & Ors [2007] NSWSC 1266

HEARING DATE(S) : 2 & 5/11/2007

JUDGMENT DATE : 5 November 2007

JURISDICTION : Equity

JUDGMENT OF : Bryson AJ at 1

DECISION : I order pursuant to UCPR 28.2 that the separate question be decided separately from any other question at the trial of the proceedings. The separate question is whether a general meeting of shareholders of Australian Power & Gas Co. Ltd called by Mr Wayne Bellman for 15 November 2007 can by resolution remove any director from office. The answer is: No, the general meeting can not remove any director from office. Upon the Further Amended Cross-claim I make a permanent injunction against the cross-defendant in the terms of claim one but omitting the reference to Claim 5. "(1)An injunction restraining the consideration of resolutions numbered 1, 2 and 3 at the general meeting of Australian Power & Gas Company Limited called for 15 November 2007." It remains for me to consider the costs on the cross-claim, whether any further part of the originating process and the claims should be proceeded with and the costs of the originating process. I will conduct a directions hearing to deal with those subjects at 9.30am on Friday 16 November.

CATCHWORDS : CORPORATIONS - directors - removal of directors by members - one of five directors of listed public company summoned meeting of members to consider resolution to remove the other four and appoint one other - he did not comply with procedure in Corporations Act s 203D(2) (two months' notice to the company) - constitution of company empowered removal of directors by resolution of company but made no procedural requirement like those in s 203D - Held, compliance with s 203D was necessary, consideration of resolutions for removal restrained. Allied Mining & Processing Ltd v Boldbow Pty Ltd (2002) 26 WAR 355 not followed.