In the matter of Embedded Claims Pty Ltd [2021] NSWSC 969

In the matter of Embedded Claims Pty Ltd [2021] NSWSC 969

The Court was satisfied that Maryann Kapp had resigned as a director before forms were lodged notifying ASIC of changes to directors, appointment of a new director and changes of shareholders, and that those forms were not authorised in accordance with the companies' constitutions. The declarations as to the invalidity of those forms and the status of directors and shareholders should therefore be made. Because Patrick Dale was the only validly appointed director, and because the first defendant had been using company login details and the corporate key to lodge forms, delivery up of the share register, company login details and corporate key was appropriate. The undertaking offered by...

Jurisdiction
Australia
Judgment Date
28 June 2021
Procedural Posture
Application by Amended Originating Process in the Corporations List Seeking Declarations as to ASIC Registers and Consequential Relief / Principal Judgment
Outcome
Substantive relief granted in part. Declarations, liberty to restore, delivery up and costs orders made; some injunctive and affidavit relief refused; undertaking accepted from the first defendant.
Legal Topics
['membership' 'register' 'rectification of Register' 'injunctions']
['corporations' 'equity'] ['membership' 'register' 'rectification of Register' 'injunctions']

Case Brief

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Procedural Posture

Application by Amended Originating Process in the Corporations List Seeking Declarations as to ASIC Registers and Consequential Relief / Principal Judgment

Legal Issues

  1. 1 ["Whether Change to Company Details Form 484 documents lodged with ASIC in respect of Embedded Claims and Embedded Investments were of no effect because they were not authorised in accordance with the companies' constitutions." 'Whether declarations should be made as to the directors and shareholders of Embedded Claims and Embedded Investments.' 'Whether the first defendant should deliver up the share register, company login details and corporate key for the ASIC registers in respect of both companies.' 'Whether injunctive relief should be granted restraining the first defendant from acting or holding himself out as a director or manager while an undischarged bankrupt and from communicating or using the company names without consent.' 'Whether the first defendant should swear an affidavit identifying correspondence sent in the names of the companies.']

Ratio Decidendi

The Court was satisfied that Maryann Kapp had resigned as a director before forms were lodged notifying ASIC of changes to directors, appointment of a new director and changes of shareholders, and that those forms were not authorised in accordance with the companies' constitutions. The declarations as to the invalidity of those forms and the status of directors and shareholders should therefore be made. Because Patrick Dale was the only validly appointed director, and because the first defendant had been using company login details and the corporate key to lodge forms, delivery up of the share register, company login details and corporate key was appropriate. The undertaking offered by...

Court Disposition

Substantive relief granted in part. Declarations, liberty to restore, delivery up and costs orders made; some injunctive and affidavit relief refused; undertaking accepted from the first defendant.

Orders

  • ['Declarations that the Change to Company Details Form 484 (Document Number 7EBI36285) lodged with ASIC on 15 June 2021 in respect of Embedded Claims is of no effect.' 'Declaration that the Change to Company Details Form 484 (Document Number 7EBI36286) lodged with ASIC on 15 June 2021 in respect of Embedded...