In the matter of TVH Enterprise (Australia) Pty Ltd [2016] NSWSC 1734

In the matter of TVH Enterprise (Australia) Pty Ltd [2016] NSWSC 1734

Mr Henley was not entitled to the declarations or rectification order because he did not establish on the balance of probabilities that 21 days' notice of the 2 February 2016 shareholders' meeting was not given to him, nor that the meeting did not occur or that the minute of the meeting was false. The presumptions under s 29 of the Acts Interpretation Act 1901 (Cth) and s 160 of the Evidence Act 1995 (NSW) were not displaced, and under s 249J(4) of the Corporations Act 2001 (Cth) the posted notice was taken to be given more than 21 days before the meeting. To the extent notice was not given by a method specified in s 249J or was slightly less than 21 days, that was at most an irregularity...

Jurisdiction
Australia
Judgment Date
07 December 2016
Procedural Posture
Application for Declarations and Rectification of ASIC Register Concerning Directorship of a Proprietary Company / Principal Judgment on Originating Process and Defendants' Application for Leave to Amend Points of Defence
Outcome
Plaintiffs' Originating Process dismissed; leave to amend Points of Defence refused.
Legal Topics
['removal and Appointment of Directors' 'general Meeting of Members' 'notice of Meeting' 'asic Register Rectification' 'section 1322 Validation of Procedural Irregularities' 'leave to Amend Defence' 'withdrawal of Admission' 'credit and Standard of Proof']
['corporations' 'practice and Procedure' 'evidence'] ['removal and Appointment of Directors' 'general Meeting of Members' 'notice of Meeting' 'asic Register Rectification' 'section 1322 Validation of Procedural Irregularities' 'leave to Amend Defence' 'withdrawal of Admission' 'credit and Standard of Proof']

Case Brief

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Procedural Posture

Application for Declarations and Rectification of ASIC Register Concerning Directorship of a Proprietary Company / Principal Judgment on Originating Process and Defendants' Application for Leave to Amend Points of Defence

Legal Issues

  1. 1 ["Whether notice of a general meeting of TVH's members to be held on 2 February 2016 was given to Mr Henley." 'Whether resolutions at the 2 February 2016 meeting validly appointed Messrs Nguyen and Huang as directors of TVH and removed Mr Henley as a director.' 'Whether any irregularity in the giving of notice invalidated the meeting or was validated under s 1322 of the Corporations Act 2001 (Cth).' 'Whether the Relevant Defendants should have leave to amend their Points of Defence to plead that any appointment of Mr Henley as director ceased by operation of s 201H(2) of the Corporations Act 2001 (Cth).']

Ratio Decidendi

Mr Henley was not entitled to the declarations or rectification order because he did not establish on the balance of probabilities that 21 days' notice of the 2 February 2016 shareholders' meeting was not given to him, nor that the meeting did not occur or that the minute of the meeting was false. The presumptions under s 29 of the Acts Interpretation Act 1901 (Cth) and s 160 of the Evidence Act 1995 (NSW) were not displaced, and under s 249J(4) of the Corporations Act 2001 (Cth) the posted notice was taken to be given more than 21 days before the meeting. To the extent notice was not given by a method specified in s 249J or was slightly less than 21 days, that was at most an irregularity...

Court Disposition

Plaintiffs' Originating Process dismissed; leave to amend Points of Defence refused.

Orders

  • ["The Plaintiffs' Originating Process filed 6 May 2016 be dismissed." "The First Plaintiff is to pay the First, Third and Fourth Defendants' costs of the proceedings, as agreed or as assessed." 'There be no order of costs against the Second Plaintiff.' 'There be no order of costs in favour of the Second Defendant.']