In the matter of NL Mercantile Group Pty Ltd [2018] NSWSC 1337

Supreme Court New South Wales

Medium Neutral Citation: In the matter of NL Mercantile Group Pty Ltd [2018] NSWSC 1337 Hearing dates: 6, 7 and 8 June 2018 Decision date: 31 August 2018 Before: Gleeson J Decision: (1) Declare that the second defendant, Emerald Superannuation and Insurance Pty Ltd (Emerald), holds 50 percent of the one share in NL Mercantile Group Pty Ltd (Mercantile) on trust for Andrew Fulton Rofe.

(2) Order that Emerald pass a members' resolution splitting the one share in Mercantile into two shares in accordance with s 254H of the Corporations Act 2001 (Cth).

(3) Order that upon the said resolution being passed, Mercantile is to record in its register of members that the plaintiff, Andrew Fulton Rofe, holds one of the two issued shares in Mercantile.

(4) Judgment for Mercantile against Mr Rofe in the sum of $51,000.00.

(5) Order that Mr Rofe pay damages to Mercantile in the sum of $179,063.34.

(6) Mercantile and Emerald to pay Mr Rofe's costs of the statement of claim.

(7) Mr Rofe to pay Mercantile's costs of the cross-claim. Catchwords: CORPORATIONS – shares – where plaintiff and third party agreed to carry on business together through a company – where plaintiff transferred sole share in company to third party – whether third party agreed to hold 50 percent of the share on trust for plaintiff – where third party transferred share to second defendant – whether second defendant received share with notice of the trust

CORPORATIONS – shares – whether second defendant agreed to transfer 50 percent of the share in the company to plaintiff – whether agreement unenforceable for want of writing – Conveyancing Act 1919 (NSW), s 23C(1)(c) – whether part performance of the agreement