In the matter of Calabria Community Club Ltd [2013] NSWSC 998

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Calabria Community Club Ltd [2013] NSWSC 998 Hearing dates: 3, 4, 9, 10, 11 October 2012; 13, 14, 15 February; 23 April 2013 Decision date: 26 July 2013 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Order that the proceedings be dismissed, with costs. Reserve leave to the parties to apply for any different or special costs order, any such application to be made by 19 August 2012. Catchwords: CORPORATIONS - Oppression - whether director unfairly excluded from affairs of company - where director absent from meetings for six months - where director attended subsequent board meetings without objection - whether consent for absence to be inferred from circumstances - whether refinancing transaction contrary to interests of company - where other arguably more favourable loan offers available - whether directors had approval of the board to enter into loan agreement - whether board meetings convened with inadequate notice or information so as to prevent effective participation - whether directors failed to provide information reasonably requested - whether directors failed to call meetings as required by constitution

CORPORATIONS - Winding up on just and equitable grounds - Failure of the substratum of the company - where company limited by guarantee was formed for enumerated purposes - where directors proposed to develop land held by the company - whether redevelopment of sole asset was outside the general intention and common understanding of the members

CORPORATIONS - Winding up - Oppression - company limited by guarantee - relief - whether winding up an appropriate or proportionate remedy Legislation Cited: (CTH) Corporations Act, s 232, 233(1)(a), 461(1)(f), (g); Cases Cited: In re London and Northern Bank; McConnell's Claim [1901] 1 Ch 728 In re London and Northern Bank; Mack's Claim [1900] WN (Eng) 114 Ryan v Heiler (NSWSC, Young J, 26 February 1990, unreported, BNC9002695 Willsmore v Willsmore-Tibbenham Ltd (1965) 109 Sol Jo 699 Cheerine Group (International) Pty Ltd v Yeung [2006] NSWSC 1047 Supercar International Holdings Ltd v Sommers (2011) 84 ACSR 466 Shum Yip Properties Developments Ltd v Chatswood Investment and Development Co Pty Ltd (2002) 40 ACSR 619 John J Starr (Real Estate) Pty Ltd v Robert R Andrew (A'asia) Pty Ltd (1991) 6 ACSR 63 Re Tivoli Freeholds Ltd [1972] VR 445 Fexuto v Bosnjak [2001] NSWCA 97 Ian Allan Byrne v A J Byrne Pty Ltd [2012] NSWSC 667] Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 Re Ingleburn Horse & Pony Club [1973] 1 NSWLR 641 ASC v Multiple Sclerosis Society of Tas (1993) 10 ACSR 489 Category: Principal judgment Parties: Carbone, Pasquale (first plaintiff) Marrapodi, Silvio (second plaintiff) Perri, Filippo (third plaintiff) Labbozzetta, Anthony (fourth plaintiff) Calabria Community Club Ltd (defendant) Representation: Counsel: DS Weinberger (plaintiffs) G Laughton SC (defendant) Solicitors: Gillis Delaney Lawyers (plaintiffs) Maclarens Lawyers (defendant) File Number(s): 2012/ 60565