City Pacific Limited, in the matter of; City Pacific Limited ACN 079 453 955 v Bacon [2009] FCA 687

City Pacific Limited, in the matter of; City Pacific Limited ACN 079 453 955 v Bacon [2009] FCA 687

The application for interlocutory injunctive relief was dismissed because, although there were reservations and serious questions concerning the form of the proposed resolution and proxies, the misleading or deceptive conduct case was not strong and the balance of convenience favoured leaving members to consider the notified resolution with the relevant concerns in mind rather than restraining the meeting from considering it.

Jurisdiction
Australia
Judgment Date
23 June 2009
Procedural Posture
Application for Declaratory and Injunctive Relief Concerning a Meeting of Members of a Managed Investment Scheme / Interlocutory Application for Injunctive Relief Filed 17 June 2009
Outcome
Application for interlocutory injunctive relief dismissed; joinder orders made; costs reserved.
Legal Topics
['removal and Replacement of Responsible Entity' 'extraordinary Resolution of Scheme Members' 'alleged Misleading or Deceptive Explanatory Memorandum' 'proxy Documents' 'interlocutory Injunction' 'joinder' 'costs Reserved']
['corporations Law' 'managed Investment Schemes' 'civil Procedure'] ['removal and Replacement of Responsible Entity' 'extraordinary Resolution of Scheme Members' 'alleged Misleading or Deceptive Explanatory Memorandum' 'proxy Documents' 'interlocutory Injunction' 'joinder' 'costs Reserved']

Case Brief

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Procedural Posture

Application for Declaratory and Injunctive Relief Concerning a Meeting of Members of a Managed Investment Scheme / Interlocutory Application for Injunctive Relief Filed 17 June 2009

Legal Issues

  1. 1 ['Whether the defendants should be restrained from proceeding with the business of the extraordinary resolution set out in the notice of meeting dated 20 May 2009.' 'Whether alleged misleading or deceptive statements or omissions in the explanatory memorandum justified interlocutory restraint of the proposed resolution.' 'Whether s 601FM(1) of the Corporations Act 2001 (Cth) required two distinct resolutions, one removing the existing responsible entity and one choosing a new responsible entity.' 'Whether proxy documents for the meeting had to be sent only to the responsible entity and whether non-compliance would affect validity.' 'Whether any irregularities might be validated under s 1322 of the Corporations Act 2001 (Cth).' 'Whether the balance of convenience favoured interlocutory injunctive relief.']

Ratio Decidendi

The application for interlocutory injunctive relief was dismissed because, although there were reservations and serious questions concerning the form of the proposed resolution and proxies, the misleading or deceptive conduct case was not strong and the balance of convenience favoured leaving members to consider the notified resolution with the relevant concerns in mind rather than restraining the meeting from considering it.

Court Disposition

Application for interlocutory injunctive relief dismissed; joinder orders made; costs reserved.

Orders

  • ['The application for injunctive relief filed 17 June 2009 be dismissed.' 'City Pacific Limited ACN 079 453 955 as the responsible entity for the City Pacific Income Fund, be joined as the second plaintiff in these proceedings.' 'Pursuant to Order 6 rule 8, persons named as the requisitioning members in annexure A...