In the matter of Bicher & Son Pty Ltd [2020] NSWSC 711

In the matter of Bicher & Son Pty Ltd [2020] NSWSC 711

The court found that neither party established a right to oppression-based relief, nor was a winding up order or buy-out order appropriate; both shareholders participated in and were responsible for practices, notably cash wage payments and false financial reporting, that resulted in significant company tax non-compliance. Where culpability was mutual, neither party should be preferred, and current management and compliance steps taken since preclude intervention. Accordingly, all claims seeking oppression or winding up relief were dismissed.

Parties
Plaintiff/cross Defendant: Paul Pellarini; First Defendant: Bicher & Son Pty Ltd; Second Defendant/cross Claimant: Nicolae Bicher
Jurisdiction
Australia
Judgment Date
09 June 2020
Procedural Posture
Corporations Oppression and Winding Up Proceedings / Final Judgment
Outcome
Proceedings dismissed.
Legal Topics
Oppression Remedies, Winding Up on Just and Equitable Ground, Shareholder Disputes, Members' Rights, Tax Compliance
Corporations Law Equity Oppression Remedies Winding Up on Just and Equitable Ground Shareholder Disputes Members' Rights Tax Compliance

Case Brief

Summary, issues, holding and outcome

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Parties

Paul Pellarini

Plaintiff/cross Defendant

Bicher & Son Pty Ltd

First Defendant

Nicolae Bicher

Second Defendant/cross Claimant

Procedural Posture

Corporations Oppression and Winding Up Proceedings / Final Judgment

Legal Issues

  1. 1 Whether conduct of management constituted oppression or was unfairly prejudicial to or discriminatory against a member under s 232 of the Corporations Act 2001 (Cth)
  2. 2 Whether a winding up on the just and equitable ground should be ordered under s 461 of the Corporations Act 2001 (Cth)
  3. 3 Whether a buy-out order was appropriate between disputing shareholders

Ratio Decidendi

The court found that neither party established a right to oppression-based relief, nor was a winding up order or buy-out order appropriate; both shareholders participated in and were responsible for practices, notably cash wage payments and false financial reporting, that resulted in significant company tax non-compliance. Where culpability was mutual, neither party should be preferred, and current management and compliance steps taken since preclude intervention. Accordingly, all claims seeking oppression or winding up relief were dismissed.

Court Disposition

Proceedings dismissed.

Orders

  • Proceedings dismissed. Parties to provide orders including as to costs.