In the matter of Richardson & Wrench Holdings Pty Limited [2013] NSWSC 1990

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Richardson & Wrench Holdings Pty Limited [2013] NSWSC 1990 Hearing dates: 7 November 2013 Decision date: 07 November 2013 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: (1) Declare that the purported amendment of the second defendant's articles of association by members' circular resolution dated 23 July 2013 by inserting new article 44A is invalid and of no effect. (2) Note that had the court not order (1), it would have made an order pursuant to Corporations Act s 1322(2) declaring that the said circular resolution was invalid and of no effect, and alternatively would have made an order pursuant to s 233(1)(b) that article 44A inserted by such amendment be deleted. (3) Order that the first defendant pay the plaintiff's costs. (4) Order that a copy of this order be lodged with the Australian Securities and Investments Commission. Catchwords: CORPORATIONS - Articles of association - purported amendment by members' circular resolution inserting new article requiring that all resolutions of company only be passed, carried and effected with the affirmative votes of at least 75% majority of votes of members present and voting - whether amendment invalid and of no effect - first defendant shareholder not duly authorised as corporate representative of plaintiff to assent to a circular resolution - resolution oppressive within (Cth) Corporations Act 2001 s 232(c) and (e) - appropriate to modify constitution by repealing inserted article. Legislation Cited: (Cth) Corporations Act 2001 s 232, s 233, s 249A, s 249F, s 250D, s 1322 Cases Cited: Gosford Christian School Limited v Totonjian [2006] NSWSC 725 International Hospitality Concepts Pty Ltd v National Marketing Concepts Inc (No 2) (1994) 13 ACSR 368 Onefone Australia Pty Limited v One.Tel Limited [2010] NSWSC 1120, (2010) 80 ACSR 11 Re Polyresins Pty Limited (1998) 12 ACLC 1674 Watson v James [1999] NSWSC 600 Whitehouse v Capital Radio Network Pty Limited [2004] TASSC 12; (2004) 48 ACSR 569 Texts Cited: Ford's Principles of Corporations Law Category: Principal judgment Parties: M E Shelf No 16 Pty Limited (plaintiff) Kie Chie Wong (and others) (first defendant) Richardson & Wrench Holdings Pty Limited (second defendant) Representation: Counsel: J M Ireland (solicitor) (plaintiff) S Balafoutis (first defendant) Solicitors: Rockwell Olivier (plaintiff) C G Gillis & Co (first defendant) File Number(s): 2013/247242