Great Australian Operations Pty Ltd (Receivers and Managers Appointed) v Washington H. Soul Pattinson and Company Limited [2012] NSWSC 1134

Supreme Court New South Wales

Medium Neutral Citation: Great Australian Operations Pty Ltd (Receivers and Managers Appointed) v Washington H. Soul Pattinson and Company Limited [2012] NSWSC 1134 Hearing dates: 18 July 2012 Decision date: 31 August 2012 Jurisdiction: Equity Division Before: Slattery J Decision: Proceedings struck out to the extent they seek specific performance of an alleged agreement for sale of the plaintiff's shareholding interest. The plaintiff's alternative claim for damages permitted to continue. Catchwords: PRACTICE AND PROCEDURE - motion to strike out plaintiff's claim - motion challenging plaintiff's retainer of solicitors to conduct proceedings - defendant appoints receivers and managers to plaintiff's shareholding interest in mining company - proceedings brought in the name of the plaintiff by its directors to (1) enforce a sale agreement said to arise out of the exercise of rights under a buy out provision in a shareholders agreement, and alternatively (2) for damages for the breach of the alleged sale agreement - no challenge to validity of appointment of receivers - whether activating the buyout provisions of the shareholders agreement and whether commencing the proceedings arguably impairs or has an effect upon the receivers' functions - whether, after the appointment of receivers, the plaintiff's directors arguably have capacity to act in name of plaintiff to activate the shareholders agreement and to instruct solicitors to commence proceedings - whether the defendant has demonstrated the absence of a right to bring these proceedings warranting the entry of summary judgment against the plaintiff. Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Agar v Hyde (2000) 201 CLR 552 Australian Securities and Investments Commission (ASIC) v Lanepoint Enterprises Pty Ltd (Receivers and Managers Appointed) (2011) 244 CLR 1 Bott v Carter [2012] NSWCA 89 Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268 Deangrove Pty Ltd v Commonwealth Bank of Australia (2001) 108 FCR 77 Doulaveras v Daher (2009) 253 ALR 627 GE Capital Commercial Finance Limited v Sutton [2004] EWCA Civ 315 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gomba Holdings (UK) Ltd v Homan [1986] 3 All ER 94 Great Australian Operations Pty Limited (Receivers and Managers Appointed) v CopperChem Limited [2012] FCA 391 Hawkesbury Developments Co Ltd v Landmark Finance Pty Ltd (1969) 92 WN (NSW) 199 Hillig v Darkinjung Pty Ltd (No. 2) [2008] NSWCA 147 M Wheeler & Co Ltd v Warmer [1928] Ch 840 Moss Steamship Co Ltd v Whinney [1912] AC 25 Newhart Developments Ltd v Co-operative Commercial Bank Ltd [1978] QB 814 Penthouse Publications Ltd v McWilliam (NSWCA, 14 March 1991, unreported) Re Geneva Finance Ltd (1992) 7 WAR 496 Sun-Life Properties Pty Ltd v Chellaston Pty Ltd (1993) 10 ACSR 476 United Service Insurance Co Ltd (in liq) v Lang (1935) 35 SR (NSW) 487 Category: Principal judgment Parties: Applicant:- Great Australian Operations Pty Ltd (Receivers and Managers Appointed) Respondent:- Washington H. Soul Pattinson and Company Limited Representation: Counsel: