In the matter of Alexandria Landfill Pty Limited [2016] NSWSC 1503

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Alexandria Landfill Pty Limited [2016] NSWSC 1503 Hearing dates: Friday, 18 September 2015 Date of orders: 25 October 2016 Decision date: 25 October 2016 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Plaintiff to bring in short minutes including declaration to effect that resolution of second defendant as sole director of first defendant to declare but not pay an interim dividend to the ordinary shareholder (being the second defendant) is void Catchwords: CORPORATIONS – members' rights and remedies – dividend – preference shares – where shareholder agreement gives right to minimum cash distribution with ability to accrue as a loan pending accrual of sufficient income to declare a dividend – where terms of issue refer to right to participate pari passu with other shares – where sole director resolves to pay dividend to ordinary shareholder – whether preference shareholders are entitled to participate pari passu in any dividend – whether pari passu rights additional to minimum cash distribution – whether dividend resolution creates an immediate enforceable liability, a deferred liability, or is mere statement of intention, or a nullity – whether resolution is inconsistent with the rights of, or oppressive to, the preference shareholders or contrary to the interests of the company as a whole – whether loans accrued in respect of past minimum cash distributions have become due and payable to the preference shareholders Legislation Cited: (CTH) Corporations Act 2001, s 254T(1)(b), s 254U, s 254V, s 588G (NSW) Companies Act 1961, Sch 4, Table A, art 102 Cases Cited: BB Retail Capital Pty Limited v Alexandria Landfill Pty Limited [2014] NSWSC 1363 BB Retail Capital Pty Ltd v Alexandria Landfill Pty Ltd [2015] NSWCA 319 Bluebottle UK Ltd v Deputy Commissioner of Taxation (2007) 232 CLR 598 Brookton Co-operative Society Ltd v Federal Commissioner of Taxation (1981) 147 CLR 441 F de Jong & Co Ltd, Re [1946] Ch 211 Industrial Equity Ltd v Blackburn (1977) 137 CLR 567 Marra Developments Ltd v B W Rofe Pty Ltd [1977] 2 NSWLR 616 Potel v Inland Revenue Commissioners [1971] 2 All ER 504 QBE Insurance Group Ltd v Australian Securities Commission (1992) 38 FCR 270 Severn and Wye and Severn Bridge Ry Co, Re [1896] 1 Ch 559 Walter Symons Ltd, Re [1934] Ch 308 Wambo Coal Pty Limited v Sumiseki Materials Co. Limited [2014] NSWCA 326; (2014) 101 ACSR 657 Wood, Skinner & Co, Re [1944] Ch 323 Texts Cited: American Jurisprudence, vol 19, 2d Category: Principal judgment Parties: BB Retail Capital Pty Limited (plaintiff) Alexandria Landfill Pty Limited (first defendant) Ian Raymond Malouf (second defendant) Representation: Counsel: N Hutley SC w J R Williams (plaintiff) C J Birch SC w B DeBuse (defendants)