In the matter of ICB Medical Distributors Pty Ltd and The International College of Biomechanics Pty Ltd; ICB Gait and Posture Clinic Pty Ltd; Foot Steps Orthotics Pty Limited [2018] NSWSC 1315

Supreme Court New South Wales

Medium Neutral Citation: In the matter of ICB Medical Distributors Pty Ltd and The International College of Biomechanics Pty Ltd; ICB Gait and Posture Clinic Pty Ltd; Foot Steps Orthotics Pty Limited [2018] NSWSC 1315 Hearing dates: 21 – 22 February; 10 – 13, 17 – 20, 26 April 2018; 20, 27 – 28 June 2018, 10, 12 – 13 July 2018 Decision date: 29 August 2018 Jurisdiction: Equity - Corporations List Before: Black J Decision: Directions to be made as to preparation of valuation evidence as to basis on which Mr Kielt is to buy out Dr Najjarine's shares in the companies in the ICB group of companies. Parties to bring in short minutes of order to give effect to this judgment within 14 days. Catchwords: CORPORATIONS – oppression – one party seeks winding up order – other party seeks order for the purchase of shares by a member of a company under s 233(1)(d) of the Corporations Act 2001 (Cth) – where amounts improperly recorded as debts owed to director or his associated companies or family members in favour of one party – where diversion of business from company to competing businesses by another party – where both parties have engaged in oppressive conduct – whether to grant order for buy-out of one party's share by the other.

CORPORATIONS – winding up – application to wind up company on just and equitable ground under s 461(1)(k) of the Corporations Act – where deadlock in the management of the company's affairs – where winding up order would advance director's associated entities' adverse interests as trade competitors of company – where alternative remedy can appropriately address the oppression – whether company should be wound up. Legislation Cited: - Corporations Act 2001 (Cth) ss 232, 233, 286, 461, 467 - Evidence Act 1995 (NSW) ss 128,136 Cases Cited: - Asia Pacific Joint Mining Pty Ltd v Allways Resources Holdings Pty Ltd [2018] QCA 48; (2018) 125 ACSR 227 - Australian Careers Institute Pty Ltd v Australian Institute of Fitness Pty Ltd [2016] NSWCA 347; (2016) 116 ACSR 566 - Australian Securities & Investments Commission v Healey [2011] FCA 717; (2011) 83 ACSR 484 - Boyd v Feeney [2017] NSWSC 1595 - Catalano v Managing Australia Destinations Pty Ltd [2014] FCAFC 55; (2014) 314 ALR 62 - Cook v Deeks [1916] 1 AC 554; [1916-17] All ER Rep 285 - Coope v LCM Litigation Fund Pty Ltd [2016] NSWCA 37; (2016) 333 ALR 524 - Dick v Alan Powell Holdings Pty Ltd [2009] QSC 184 - Green v Bestobell Industries Pty Ltd [1982] WAR 1; (1982) 1 ACLC 1 - Edmonds v Donovan [2005] VSCA 27; (2005) 12 VR 513 - Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599 - Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 - Hillam v Ample Source International Ltd (No 2) (2012) 202 FCR 336 - Howard v Commissioner of Taxation [2014] HCA 2 ; (2014) 253 CLR 83 - Hunter v Organic and Natural Enterprise Group Pty Ltd [2012] QSC 383; (2012) 92 ACSR 183 - Mordecai v Mordecai (1988) 12 NSWLR 58; 12 ACLR 751; 6 ACLC 370 - Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 - Munstermann v Rayward [2017] NSWSC 133 - Pennimpede v Gerard Pennimpede [2009] NSWSC 85 - Re AJ Roberts Removals & Storage Pty Limited [2017] NSWSC 1054 - Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789; (2014) 101 ACSR 233 - Re Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 - Re Ledir Enterprises Pty Ltd [2013] NSWSC 1332; (2013) 96 ACSR 1 - Re Pure Nature Sydney Pty Ltd [2018] NSWSC 914 - Streeter v Western Areas Exploration Pty Ltd (No 2) [2011] WASCA 17; (2011) 278 ALR 291 - Supercar International Holdings Ltd v Sommers [2011] NSWSC 336; (2011) 84 ACSR 466 - Tomanovic v Argyle HQ Pty Ltd [2010] NSWSC 152 - Tomanovic v Global Mortgage Equity Corporation Pty Ltd [2011] NSWCA 104; (2011) 84 ACSR 121 - Victory Projects Pty Ltd v AAA Self Storage Pty Ltd [2016] NSWSC 1758 - Watson v Foxman (1995) 49 NSWLR 315 - Wayde v New South Wales Rugby League Ltd [1985] HCA 68; (1985) 180 CLR 459 Category: Principal judgment Parties: Abdul Rahman Najjarine (Plaintiff/Cross-Defendant) Rodney St John Kielt (Defendant/Cross-Claimant) Representation: Counsel: F P Carnovale (Plaintiff/Cross-Defendant) V Whittaker/D Birch (Defendant/Cross-Claimant)