Weinstock v Beck [2011] NSWCA 228

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Weinstock v Beck [2011] NSWCA 228 Hearing dates: 16 June 2011 Decision date: 17 August 2011 Before: Giles JA at [1]; Young JA at [2]; Handley AJA at [105] Decision: (1) By majority appeal allowed with costs. (2) Orders 1 and 2 in the Equity Division set aside. (3) In lieu thereof substitute a declaration that the 8 C class shares held by the late Hedy Jadwiga Weinstock were redeemable preference shares which were validly redeemed by the company on or about 29 July 2004. (4) The respondent to pay the defendants' costs of and incidental to the hearing in the Equity Division on these issues. (5) The respondent Tamar Rivqa Beck is to have a certificate under the Suitors Fund Act for the costs of the appeal. [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- redeemable preference shares- whether shares can be "redeemable preference shares" if there are no issued shares over which they take preference- the rights described in the articles of association determine whether shares are preferential- there is a distinction between the rights attached to a share and the enjoyment of those rights- shares with potential preferential rights but no effective content may be preference shares- appeal allowed- redemption effective. Legislation Cited: Companies Act 1862 (UK), s 33 Companies Act 1961, ss 16, 54, 51, 63, 66 Corporations Act 2001 (Cth), ss 9, 254A, 254E, 254J, 254K, 254L, 411 Singapore Companies Act, s 4 Cases Cited: Alliance Perpetual Building Society v Clifton [1962] 1 WLR 1270 Andrews v Gas Meter Co [1897] 1 Ch 361 Beck v LW Furniture Consolidated (Aust) Pty Ltd [2011] NSWSC 235 Campbell v Rofe (1932) 48 CLR 258 Hogsett v Aetna Building and Loan Association 96 P 52 (Kan SC) (1908) Hutton v The Scarborough Cliff Hotel Company Ltd (1865) 4 De GJ & S 672; 46 ER 1079 In re St James' Court Estate Ltd [1944] Ch 6 People ex rel S Cohn & Co v Miller 72 NE 525 (NY) (1904) Pilmer v Duke Group Ltd (in liq) [2001] HCA 31; 207 CLR 165 Re Capel Finance Ltd [2005] NSWSC 286; 52 ACSR 601 Re Metal Constituents Ltd [1902] 1 Ch 707 Re Powell-Cotton's Resettlement [1957] Ch 159; 1 All ER 404 Re Schaffer Stores Co Inc 229 NYS 735 (1928) Robertson v FCT [1952] HCA 71; 86 CLR 463 Rubas v Parkinson [1929] 3 DLR 558 Scott v Frank F Scott (London) Ltd [1940] Ch 794 Starring v American Hair & Felt Co 191 A 887 (Del Ch) (1937) White v Bristol Aeroplane Co Ltd [1953] Ch 65 Category: Principal judgment Parties: Amiram David Weinstock (First Appellant) Helen Weinstock (Second Appellant) LW Furniture Consolidated (Aust) Pty Ltd (Third Appellant) Tamar Rivqa Beck (Respondent) Representation: D F Jackson QC/S Nixon (Appellants) R G McHugh SC/D J Barnett (Respondent) Baker & McKenzie (Appellants) Harris Freidman Lawyers (Respondent) File Number(s): CA 2007/287773 Decision under appeal Citation: Beck v Weinstock [2010] NSWSC 1068 Date of Decision: 2010-09-17 00:00:00 Before: Hamilton AJ File Number(s): SC 2007/287773