Angelis as trustee for the Angelis Family Trust v Pemba Capital Partners Fund I Partnership, LP (No 3) [2019] NSWSC 1759

Supreme Court New South Wales

Medium Neutral Citation: Angelis as trustee for the Angelis Family Trust v Pemba Capital Partners Fund I Partnership, LP (No 3) [2019] NSWSC 1759 Hearing dates: 28 October – 11 November, 13 – 14 November and 4 – 5 December 2019 Decision date: 10 December 2019 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: The shareholders of Coverforce remain bound by the 2017 Shareholders Agreement; Pemba would have been entitled to proceed with the sale to AUB; the Kitchin Parties are entitled to reverse the Resilium transaction or recover damages Catchwords: CONTRACTS – formation – agreement – whether shareholders agreed to vary the shareholders agreement

CONTRACTS – construction – interpretation – purported "binding" term sheet – what the term sheet was binding to do

CONTRACTS – construction – interpretation shareholders agreement – decisions "in relation to" subject matters which required special majority shareholder approval – what "in relation to" means in this context

CONTRACTS – misleading conduct under statute – misleading or deceptive conduct – representations – representations as to authority of company to enter transaction

CORPORATIONS – contracts – formalities – statutory assumptions – persons entitled to assume document duly executed – whether person knew or suspected that assumption was incorrect Legislation Cited: Australian Consumer Law Corporations Act 2001 (Cth) Cases Cited: Angelis as trustee for the Angelis Family Trust v Pemba Capital Partners Fund I Partnership, LP [2019] NSWSC 1646 Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472; [2001] FCA 1549 Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 Gould v Vaggelas (1984) 157 CLR 215; [1984] HCA 68 Kimberley NZI Finance Ltd v Torero Pty Ltd (1989) ATPR (Digest) 46-054 Love & Stewart Ltd v S Instone & Co Ltd (1917) 33 TLR 475 Rafferty v Madgwicks (2012) 203 FCR 1; [2012] FCAFC 37 Sinclair, Scott & Co v Naughton (1929) 43 CLR 310; [1929] HCA 34 Software Integrators Pty Ltd v Roadrunner Couriers Pty Ltd (1997) 69 SASR 288 Sykes v Reserve Bank of Australia (1998) 158 ALR 710; (1998) 88 FCR 511 Travel Compensation Fund v Tambree t/as R Tambree & Associates (2005) 224 CLR 627; [2005] HCA 69 Warner v Elders Rural Finance Ltd (1993) 41 FCR 399 Watson v Foxman (1995) 49 NSWLR 315 Winterton Constructions Pty Ltd v Hambros Australia Ltd (1992) 39 FCR 97 Category: Principal judgment Parties: James Angelis as trustee for the Angelis Family Trust (First Plaintiff/Second Cross-Defendant on First Cross-Claim/Sixth Cross-Defendant on Second Cross-Claim) Jitendra Dutt (Second Plaintiff/Third Cross-Defendant on First Cross-Claim) Nathan Brown (Third Plaintiff/Fourth Cross-Defendant on First Cross-Claim) Antony Goldsmith (Fourth Plaintiff/Fifth Cross-Defendant on First Cross-Claim) Copiapo Pty Ltd as trustee for FCK Consulting Trust (Fifth Plaintiff/Sixth Cross-Defendant on First Cross-Claim) Pemba Capital Partners Fund I Partnership, LP (First Defendant/Cross-Claimant on First Cross-Claim/First Cross-Defendant on Second Cross-Claim) Pemba Capital Partners Pty Ltd as trustee for the Castlereagh St (Swan) Co-Investment Trust (Second Defendant/Cross-Claimant on First Cross-Claim/Second Cross-Defendant on Second Cross-Claim) Adrian Christopher Kitchin (Third Defendant/Seventh Cross-Defendant on First Cross-Claim/First Cross-Claimant on Second Cross-Claim) Benjamin James Hastie (Fourth Defendant/Eighth Cross-Defendant on First Cross-Claim/Second Cross-Claimant on Second Cross-Claim) Drue Jonathon Giles Castanelli (Fifth Defendant/Ninth Cross-Defendant on First Cross-Claim/Third Cross-Claimant on Second Cross-Claim) Coverforce Holdings Pty Ltd (Sixth Defendant/First Cross-Defendant on First Cross-Claim/Fourth Cross-Defendant on Second Cross-Claim) AUB Group Ltd (Seventh Defendant/Third Cross-Defendant on Second Cross-Claim) Resilium BidCo Pty Ltd (Fourth Cross-Claimant on Second Cross-Claim) Resilium OpCo Pty Ltd (Fifth Cross-Defendant on Second Cross-Claim) Representation: Counsel: F Corsaro SC with H Pintos-Lopez and E Olivier (Plaintiffs) R A Dick SC with P Flynn SC (on 4 December 2019) and E Bathurst (First and Second Defendants) M R Elliott SC with D Ratnam (Third to Fifth Defendants) N M Bender (Seventh Defendant)