Nutectime International Pty Limited v Timentel Pty Limited [2011] NSWCA 257

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Nutectime International Pty Limited v Timentel Pty Limited [2011] NSWCA 257 Hearing dates: 16 June 2011 Decision date: 05 September 2011 Before: Giles JA , Handley AJA , Tobias AJA Decision: 1. Appeal allowed with costs. 2. Orders 1 and 2 made in the Equity Division on 30 October 2009 set aside. 3. Order 3 which directed that Timentel Pty Ltd be wound up, and Order 4 that appointed James Alexander Shaw as liquidator set aside unless within 14 days a consent order is filed signed by or on behalf of the appellants, and the second and third respondents, to confirm those orders. 4. Order 6 dismissing the defendants' cross-claim set aside, and in lieu thereof judgment for the cross claimants David Neilan Brady and David Brian Paix for nominal damages. 5. The plaintiff to pay the costs of the defendants David Neilan Brady and David Brian Paix of the proceedings in the Equity Division including the cross-claim. 6. The respondents Patricia Mary Ehsman and Michael Ehsman 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 - oppression - private company - breakdown in relationship - funds urgently required - majority make secured advance - minority fully informed - refused to contribute - no oppression CORPORATIONS - oppression - private company - breakdown in relationship - majority selling assets to new company owned by them at fair valuation - minority fully informed - declined to make higher offer or obtain further valuation - no oppression CORPORATIONS - oppression - private company - breakdown in relationship - majority undertaking informal winding up - formal winding up no benefit to minority - no oppression DIRECTORS - duty to act in good faith for benefit of company - company in difficulties - majority making secured advance to preserve assets - breach of duty not established MORTGAGES - advances made before security granted - advances pursuant to agreement to grant security - made under security when granted - no preference VALUATION - retrospective - events after valuation date - known contingencies at valuation date - evidence of later events admissible Legislation Cited: Corporations Act 2001, ss 232 and 233 Suitors Fund Act Cases Cited: Brown Shipley & Co v Kough (1884) 29 Ch D 848 Bwllfa & Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Ltd [1903] AC 426 Ex parte Fisher (1872) LR 7 Ch App 636 In re Colombian Fire-Proofing Co Ltd [1910] 1 Ch 758 In re F&E Stanton Ltd [1929] 1 Ch 180 In re Jackson & Bassford Ltd [1906] 2 Ch 467 McCathie v FCT [1944] HCA 9, 69 CLR 1 Morris v Morris [1895] AC 625 Nocton v Ashburton [1914] AC 932 Re Hyams (1970) 19 FLR 232 Richard Brady Franks Ltd v Price [1937] HCA 42, 58 CLR 112 Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584 Willis v The Commonwealth [1946] HCA 22, 73 CLR 105 Category: Principal judgment Parties: 1st Appellant - Nutectime International Pty Ltd 2nd Appellant - David Neilan Brady 3rd Appellant - David Bruce Paix 1st Respondent - Timentel Pty Ltd 2nd Respondent - Patricia Mary Ehsman 3rd Respondent - Michael Ehsman Representation: Counsel: F Corsaro SC with B Bradley - Appellant S B Docker - 1-3 Respondents Solicitors: Appellant - Mason Lawyers Respondent - McDonald Johnson Lawyers File Number(s): 2005/261666 Decision under appeal Citation: [2009] NSWSC 1096 Date of Decision: 2011-09-05 00:00:00 Before: Gzell J File Number(s): 5189 of 2005