In the matter of Invigor Group Limited [2019] NSWSC 995

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Invigor Group Limited [2019] NSWSC 995 Hearing dates: 6 August 2019 Decision date: 07 August 2019 Jurisdiction: Equity - Corporations List Before: Rees J Decision: 1. Originating Process filed on 23 April 2019 is dismissed. 2. Plaintiff to pay the defendant's costs of the proceedings. 3. Grant liberty to the defendant to apply, by 21 August 2019, for a variation to Order 2 to seek indemnity costs and/or a lump sum costs order, such application to be made by sending any affidavit evidence, along with submissions limited to four pages, by email to the chambers of Rees J, copied to the plaintiff's legal representatives. 4. In the event that the liberty in Order 3 is exercised, direct the plaintiff send by email to the chambers of Rees J, copied to the defendant's legal representatives, any affidavit evidence in reply, along with submissions limited to four pages, by 4 September 2019. Catchwords: CORPORATIONS — Winding up — Statutory demand — Genuine dispute — Where Loan and Convertible Note Agreement provided for conversion of notes into shares by certain date or for loan amount to be repaid — Where later variations entered into but never completed — Where plaintiff proposed further variations — Plaintiff and associated entities acted unilaterally in terms of proposed further variations — No acceptance of offers by defendant — Whether defendant estopped from denying the existence of variations — No estoppel arises — No genuine dispute that loan monies repayable — Application dismissed. Legislation Cited: Corporations Act 2001 (Cth), s 459G Cases Cited: Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601; [2013] NSWCA 344 EK Nominees Pty Ltd v Woolworths Ltd [2006] NSWSC 1172 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 Graywinter Properties Pty Ltd v Gas & Fuel Corp Superannuation Fund (1996) 70 FCR 452; (1996) 21 ACSR 581 Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601 TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67; [2008] VSCA 70 Texts Cited: Australian Securities Exchange, "Understanding hybrid securities" (2016) Category: Principal judgment Parties: Invigor Group Limited (Plaintiff) Raus Capital Fund Limited (Defendant) Representation: Counsel: Mr GD McDonald (Plaintiff) Mr P Afshar (Defendant)