Tomanovic v Global Mortgage Equity Corporation Pty Ltd [2011] NSWCA 104

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tomanovic v Global Mortgage Equity Corporation Pty Ltd [2011] NSWCA 104 Hearing dates: 6 & 7 September 2010 Decision date: 04 May 2011 Before: Campbell JA at [1], Macfarlan JA at [314], Young JA at [315] Decision: 1. The parties are to confer promptly about the orders that are appropriate to give effect to these reasons for judgment. 2. If within 21 days of the date of delivery of these reasons for judgment the parties have agreed upon the orders that are appropriate, a minute of the orders signed on behalf of each party be provided to the Associate to Campbell JA. 3. If within 21 days of the date of delivery of these reasons for judgment the parties have not agreed upon the orders that are appropriate, within 24 days of the date of delivery of these reasons for judgment each party is to file in the registry and provide to the Associate of each judge comprising the bench for the hearing of this appeal, a draft of the orders that in the submission of that party are appropriate, together with written submissions in support of the making of those orders. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CORPORATIONS - oppression - ss 232, 233 Corporations Act 2001 (Cth) - agreement in principle for separation of interests in business enterprise carried out in some respects but not others - oppression possible even if no breach of contract nor estoppel - oppression possible even if conduct is carried out in good faith - keeping the value of minority shareholding locked up can be oppression - reasonable offer to buy out the minority shareholding does not necessitate a conclusion of no oppression - whether court has power to grant relief concerning assets that corporate trustee held on trust - 'legitimate expectation' not appropriate and unhelpful in context of oppression remedy - appropriate remedy for oppression - principles for deciding time as at which value of share to be decided for compulsory buy-out order - CORPORATIONS - winding up - by court - s 461(f), (k) - compulsory buyout order preferable where serious commercial detriment arise from winding up of companies and where both parties submit compulsory buyout preferable Legislation Cited: Companies Act 1961 Companies Act 1961 (Vic) Contracts Review Act 1980 Corporations Act 2001 (Cth) Trade Practices Act 1974 (Cth) Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 Australasian Memory Pty Ltd v Brien [2000] HCA 30; (2000) 200 CLR 270 Beneficial Finance Corporation Limited v Karavas (1991) 23 NSWLR 256 Campbell v Backoffice Investments Pty Ltd [2008] NSWCA 95; (2008) 66 ACSR 359 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [2001] NSWCA 97; (2001) 37 ACSR 672 House v R (1936) 56 CLR 499 Kizquari Pty Ltd v Prestoo Pty Ltd (1993) 10 ACSR 606 Lucy v Lomas [2002] NSWSC 448 M Dalley & Co Pty Ltd v Simms (1968) 120 CLR 603 McEwen v Combined Coast Cranes Pty Ltd [2002] NSWSC 1227; (2002) 44 ACSR 244 McMillan v Toledo Enterprises International Pty Ltd (1995) 18 ACSR 603 Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 Nassar v Innovative Precasters Group Pty Ltd [2009] NSWSC 342; (2009) 71 ACSR 343 O'Neill v Phillips [1999] 1 WLR 1092 Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 Re a Company [1986] BCLC 362 Re Astec (BSR) Plc [1998] 2 BCLC 556 Re Bountiful Pty Ltd (1994) 12 ACLC 902 Re Polyresins Pty Ltd [1999] 1 Qd R 599 Re Posgate & Denby (Agencies) Ltd [1987] BCLC 8 Re Saul D Harrison & Sons Plc [1995] 1 BCLC 14 Re Suburban Hotel Co (1867) 2 Ch App 737 Surf Road Nominees Pty Ltd v James [2004] NSWSC 61 The Commonwealth v SCI Operations [1998] HCA 20; (1998) 192 CLR 285 Thomas v HW Thomas Ltd [1984] 1 NZLR 686 Tomanovic v Argyle HQ Pty Ltd; Tomanovic v Global Mortgage Equity Corporation Pty Ltd; Sayer v Tomanovic [2010] NSWSC 152 Trust Company Ltd v Noosa Venture 1 Pty Ltd [2010] NSWSC 1334 Vigliaroni v CPS Investment Holdings Pty Ltd [2009] VSC 428 Warren v Coombes (1979) 142 CLR 531 Wayde v NSW Rugby League Ltd [1985] HCA 68; 180 CLR 459 Texts Cited: Ford's Principles of Corporations Law, 13th edition (2007) Category: Principal judgment Parties: In all proceedings Zoltan Tomanovic (First Appellant) Australian Financial Services Corporation Pty Limited (Second Appellant) In 76372 of 2010 Global Mortgage Equity Corporation Pty Limited (First Respondent) One Australia Pty Limited (Second Respondent) In 76370 of 2010 Argyle HQ Pty Limited (First Respondent) Kenneth James Sayer (Second Respondent) In 297497 of 2009 Kenneth James Sayer (First Respondent) Ken Sayer Investments Pty Limited (Second Respondent) Mortgage House of Australia Pty Limited (Third Respondent) Representation: Counsel: WG Muddle SC; P Newton (Appellants) DJ Higgs SC; H Stowe (Respondents) Solicitors: ERA Legal (Appellants) Brown Wright Stein Lawyers (Respondents) File Number(s): 76372 of 2010; 76370 of 2010 and 297497 of 2009 Decision under appeal Citation: Tomanovic v Argyle HQ Pty Ltd; Tomanovic v Global Mortgage Equity Corporation Pty Ltd; Sayer v Tomanovic [2010] NSWSC 152 Date of Decision: 2010-03-05 00:00:00 Before: Austin J File Number(s): 2008/282201; 2008/282203; 2009/297497