In the matter of Commercial Indemnity Pty Limited [2016] NSWSC 1125

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Commercial Indemnity Pty Limited [2016] NSWSC 1125 Hearing dates: Wednesday, 8 June 2016 Date of orders: 09 June 2016 Decision date: 09 June 2016 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Declare that the first defendant holds 10,000 shares in the second defendant, being 50% of the total shareholding in the second defendant, on trust for the plaintiff. Order that the first defendant execute and deliver to the plaintiff a transfer in registrable form of 10,000 shares, being 50% of shareholding in the second defendant, within 7 days. Order that save in so far as any interlocutory costs order otherwise provides, the first defendant pay 75% of the plaintiff's costs of the proceedings. Catchwords: CORPORATIONS – shares – contracts - plaintiff claims to be beneficially entitled to half of shares in defendant company – whether plaintiff was purchaser under contract with standing to enforce – where plaintiff had directed transfer to related party – held, plaintiff was purchaser with requisite standing

CORPORATIONS – external administration – winding up – effect on members – transfer of shares - Corporations Act 2001, s 493A – held, section voids legal transfer, not contract which precedes transfer nor equities arising under contract

COSTS – basis of assessment – whether indemnity basis appropriate Legislation Cited: (CTH) Corporations Act 2001, s 468A, s 493A Companies Act 1862 (25 & 26 Vict. C. 89), s 131 Cases Cited: Biederman v Stone (1867) LR 2 CP 504 Chapman v Shepherd; Whitehead v Izod (1867): LR 2 CP 228 Rudge v Bowman (1868) LR 3 QB 689 Category: Principal judgment Parties: Geoffrey Peter Newling (plaintiff) John Gardiner (first defendant) Commercial Indemnity Pty Limited (second defendant) 4142 Clarence Pty Limited (third defendant) Representation: Counsel: C Alexander (plaintiff) R Notley (defendants)