Carmelo Dimarti v Danielle Dimarti as Administratrix of the Estate of the Late Antonio Dimarti;; In the matter of Naro Investments Pty Ltd [2016] NSWSC 1887

Supreme Court New South Wales

Medium Neutral Citation: Carmelo Dimarti v Danielle Dimarti as Administratrix of the Estate of the Late Antonio Dimarti;; In the matter of Naro Investments Pty Ltd [2016] NSWSC 1887 Hearing dates: 13-15 December 2016 Decision date: 23 December 2016 Jurisdiction: Equity Before: White J Decision: Refer to para [133] of judgment. Catchwords: CORPORATIONS — rectification of share register — first cross-defendant and his brother each held half of the shares in the fourth cross-defendant — second cross-defendant, daughter of first cross-defendant, became the holder of all shares in the fourth cross-defendant — first cross-defendant entered into an agreement to settle earlier legal proceedings to do all things necessary to ensure that half of the shares in the fourth cross-defendant were transferred to his brother — brother of first cross-defendant now deceased — cross claimant seeks to enforce first cross-defendant's promise to do all things necessary to ensure that half of the shares in the fourth cross-defendant were transferred to his brother — whether first cross-defendant entered into the agreement with his brother under duress — held that he had not — first cross-defendant having elected to confirm the agreement by taking positive steps to enforce it cannot avoid the agreement in any event — whether first cross-defendant's brother transferred his shares in the fourth cross-defendant to the first cross-defendant — held that he had not — whether first cross-defendant's brother abandoned his shares in the fourth cross-defendant — passive shareholder does no lose his or her rights to a share by not asserting any interest in the share — that a member of a company can cease to be entitled to shares by abandonment doubted — whether second cross-defendant held half of the shares in the fourth cross-defendant on trust for brother of first cross-defendant — second cross-defendant became registered holder of shares pursuant either to a forged transfer or in the absence of a transfer — second cross-defendant had actual notice of first cross-defendant's brother's interest in shares — second cross-defendant did not acquire shares for value — at all times second cross-defendant held half of the shares in the fourth cross-defendant on constructive trust for first cross-defendant's brother — cross-claimant entitled to have the share register of the fourth cross-defendant rectified so as to record the cross-claimant as the hold of half of the shares in the fourth cross-defendant Legislation Cited: Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Cases Cited: Degmam Pty Ltd (In Liq) v Wright (No. 2) [1983] 2 NSWLR 354 Dimarti v Dimarti [2015] NSWSC 97 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12 Fitzgerald v Masters (1956) 95 CLR 420; [1956] HCA 53 In re A Company [1894] 2 Ch 349 Lunn v Cardiff Coal Company (No. 2) [2003] NSWSC 25; (2003) 173 FLR 63 Lunn v Cardiff Coal Company (No. 3) [2003] NSWSC 789; (2003) 47 ACSR 79 Maertin v Klaus Maertin Pty Ltd [2006] NSWSC 588; (2006) 57 ACSR 714 Re Exclusive Master Book-binding and Manufacturing Pty Ltd (1977) 2 ACLR 549 Re Gattopardo Ltd [1969] 2 All ER 344 Summers v Commonwealth (1918) 25 CLR 144; [1918] HCA 33 Treadtel International Pty Ltd v Cocco [2016] NSWCA 360 White v Shortall (2006) 68 NSWLR 650; [2006] NSWSC 1379 Texts Cited: Ford, Austin & Ramsay's Principles of Corporation Law (Online edition) J W Carter, Contract Law in Australia, 6th ed, LexisNexis Butterworths Category: Principal judgment Parties: Carmelo Dimarti (Plaintiff and 1st Cross-Defendant) Danielle Dimarti as administrator for the estate of Antonio Dimarti (1st Defendant and Cross-Claimant) Natalie Dimarti (2nd Cross-Defendant) Rocco Dimarti (3rd Cross-Defendant) Naro Investments Pty Ltd (4th Cross-Defendant) Representation: Counsel: Self-represented (Plaintiff and 1st Cross-Defendant) M Karam with G P Gee (1st Defendant and Cross-Claimant) G D McDonald (2nd-4th Cross-Defendants)