In the matter of ICB Medical Distributors Pty Ltd and The International College of Biomechanics Pty Ltd; ICB Gait and Posture Clinic Pty Ltd; Foot Steps Orthotics Pty Limited [2018] NSWSC 1315

In the matter of ICB Medical Distributors Pty Ltd and The International College of Biomechanics Pty Ltd; ICB Gait and Posture Clinic Pty Ltd; Foot Steps Orthotics Pty Limited [2018] NSWSC 1315

Both parties engaged in oppressive conduct within the meaning of s 232 of the Corporations Act 2001 (Cth). It is not appropriate to order winding up, as a less drastic remedy—the buy-out of Dr Najjarine's shares by Mr Kielt at fair market value adjusted to exclude impugned liabilities—is suitable to terminate the oppression and do justice between the parties. Directions are made for the preparation of valuation evidence for the buy-out basis, and parties are to bring in agreed short minutes of order to give effect to this outcome.

Jurisdiction
Australia
Judgment Date
29 August 2018
Procedural Posture
Corporations Oppression and Winding Up / Principal Judgment After Trial
Outcome
Directions for share buy-out; winding up refused.
Legal Topics
['oppression Remedy' 'winding Up on Just and Equitable Ground' 'director Duties' 'share Buy Out' 'company Valuation' 'deadlock' 'diverted Business' 'corporate Governance']
['corporations Law' 'equity'] ['oppression Remedy' 'winding Up on Just and Equitable Ground' 'director Duties' 'share Buy Out' 'company Valuation' 'deadlock' 'diverted Business' 'corporate Governance']

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

Corporations Oppression and Winding Up / Principal Judgment After Trial

Legal Issues

  1. 1 ['Whether oppression was established under s 232 of the Corporations Act 2001 (Cth)' 'Whether a winding up order or buy-out order should be made under s 233(1)(d)' 'Whether liabilities were improperly recorded in company accounts' 'Whether both parties engaged in oppressive conduct']

Ratio Decidendi

Both parties engaged in oppressive conduct within the meaning of s 232 of the Corporations Act 2001 (Cth). It is not appropriate to order winding up, as a less drastic remedy—the buy-out of Dr Najjarine's shares by Mr Kielt at fair market value adjusted to exclude impugned liabilities—is suitable to terminate the oppression and do justice between the parties. Directions are made for the preparation of valuation evidence for the buy-out basis, and parties are to bring in agreed short minutes of order to give effect to this outcome.

Court Disposition

Directions for share buy-out; winding up refused.

Orders

  • ["Directions to be made regarding preparation of valuation evidence for Dr Najjarine's shares to be bought by Mr Kielt on a basis that excludes impugned liabilities." 'Parties to bring in short minutes of order to give effect to this judgment within 14 days.' 'No order as to costs; each party to bear own costs,...