Cinc v Bucan Holdings; Cinc v Bucan Holdings [2004] NSWSC 847

Cinc v Bucan Holdings; Cinc v Bucan Holdings [2004] NSWSC 847

There was a serious question to be tried as to whether the interim apprehended violence order was sought predominantly for an improper purpose, but the evidence did not permit a final determination on the interlocutory application. The balance of convenience favoured staying orders 3 and 4 because Lucien Cinc remained a director with a statutory entitlement to inspect the company's books and records, effective access could not adequately be provided purely electronically, and safety concerns could be addressed by undertakings limiting when, where and how inspection occurred.

Jurisdiction
Australia
Judgment Date
07 September 2004
Procedural Posture
Equity Proceedings Including Winding Up Proceedings on the Just and Equitable Ground and Proceedings Seeking Relief Concerning an Interim Apprehended Violence Order / Interlocutory Application for a Stay of Parts of an Interim Apprehended Violence Order and Related Access Regime Issues
Outcome
Orders 3 and 4 of the interim apprehended violence order were stayed to and including 22 October 2004 upon undertakings; consent mediation orders were made; costs of the applications were reserved.
Legal Topics
["director's Access to Corporate Books and Records" 'interim Apprehended Violence Order' 'inherent Jurisdiction to Stay Proceedings and Orders in an Inferior Court' 'abuse of Process' 'balance of Convenience']
['corporations' 'equity' 'civil Procedure' 'criminal Law'] ["director's Access to Corporate Books and Records" 'interim Apprehended Violence Order' 'inherent Jurisdiction to Stay Proceedings and Orders in an Inferior Court' 'abuse of Process' 'balance of Convenience']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Proceedings Including Winding Up Proceedings on the Just and Equitable Ground and Proceedings Seeking Relief Concerning an Interim Apprehended Violence Order / Interlocutory Application for a Stay of Parts of an Interim Apprehended Violence Order and Related Access Regime Issues

Legal Issues

  1. 1 ['Whether there was a serious question to be tried that the interim apprehended violence order was sought for an improper predominant purpose and was an abuse of process' 'Whether orders 3 and 4 of the interim apprehended violence order should be stayed on an interlocutory basis' 'Whether the balance of convenience favoured permitting Lucien Cinc access to company premises to inspect books and records despite allegations of violence' "Whether access to the company's books and records could adequately be provided by electronic means instead of attendance at the premises"]

Ratio Decidendi

There was a serious question to be tried as to whether the interim apprehended violence order was sought predominantly for an improper purpose, but the evidence did not permit a final determination on the interlocutory application. The balance of convenience favoured staying orders 3 and 4 because Lucien Cinc remained a director with a statutory entitlement to inspect the company's books and records, effective access could not adequately be provided purely electronically, and safety concerns could be addressed by undertakings limiting when, where and how inspection occurred.

Court Disposition

Orders 3 and 4 of the interim apprehended violence order were stayed to and including 22 October 2004 upon undertakings; consent mediation orders were made; costs of the applications were reserved.

Orders

  • ['Lucien Cinc undertook that to and including 22 October 2004 he would not go to or within 400 metres of 2 Alpine Way, Glenwood.' 'Lucien Cinc undertook that he would not attend 74 Burwood Road, Burwood, except on Mondays, Wednesdays and Fridays between 12 and 1.30 pm.' 'Lucien Cinc undertook that he would provide...