Geilston v Tricom Equities [2010] NSWSC 119

New South Wales Supreme Court

CITATION : Geilston v Tricom Equities [2010] NSWSC 119

HEARING DATE(S) : 22/02/2010 JURISDICTION : Equity Division Commercial list

JUDGMENT OF : McDougall J at 1

EX TEMPORE JUDGMENT DATE : 22 February 2010

DECISION : Tricom should deliver to Geilston the 460,000 shares in the capital of Synergy Metals Limited held by Tricom for Geilston.

CATCHWORDS : CONTRACTS - construction of contract - agreement to lend shares - plaintiff sues to recover shares - what was lending agreement and terms of agreement - whether variation of agreement to delay replacement - what was plaintiff's entitlement to shares - where company restructured - where shares consolidated - whether specific performance should be granted.

LEGISLATION CITED : Evidence Act 1995 (NSW)

CATEGORY : Principal judgment

PARTIES : Geilston Pty Limited (Plaintiff) Tricom Equities (Limited)

FILE NUMBER(S) : SC 2007/266372

COUNSEL : T Koltai (Plaintiff) (In person) A Fox (Defendant)

SOLICITORS : Henry Davis York (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

McDOUGALL J

22 February 2010 (ex tempore – revised 22 February 2010)

2007/266372 GEILSTON PTY LIMITED v TRICOM EQUITIES LIMITED JUDGMENT 1 HIS HONOUR: The plaintiff (Geilston) sues to recover shares in the company formerly known as ISP Limited (ISP) held by or at the direction of the defendant (Tricom). It is common ground that in February 2001, Geilston agreed to "lend" to Tricom some 4.6 million shares in ISP held by Geilston. It was a term of the agreement that the shares would be "replaced" within twenty working days. For reasons that it will be necessary to consider in somewhat more detail, that did not happen. In these proceedings, Geilston sues to recover the shares. The issues 2 The essential issues appear to be the following: