COOKE v. FAIRBAIRN; FAIRBAIRN v. COOKE [2003] NSWSC 232

COOKE v. FAIRBAIRN; FAIRBAIRN v. COOKE [2003] NSWSC 232

William Peter Cooke failed to prove any binding oral agreement or constructive trust entitling him to William Norman Cooke's shares. The deceased's later wills and conduct were inconsistent with such an obligation, the alleged promises were indefinite, the claim was unsupported by corroboration, and Cooke's evidence was not accepted. The 20 shares purchased from Paul Cooke were beneficially owned by William Norman Cooke's estate. Since the deceased's death, ALC's affairs had been conducted oppressively toward Fairbairn because Cooke controlled the company in his own interests through irregular and excessive benefits, fictitious salary to his wife, misleading accounts, no dividend policy,...

Jurisdiction
Australia
Judgment Date
14 April 2003
Procedural Posture
Equity Division Proceedings Concerning Entitlement to Shares, Oppression Remedies and Winding Up / Final Judgment on Liability and Dismissal of 2781/02; Further Consideration of Orders in 2246/02
Outcome
Proceedings 2781/02 dismissed with costs; Fairbairn's oppression claim in 2246/02 succeeded, with further consideration of orders for compulsory purchase or winding up.
Legal Topics
['share Ownership and Beneficial Ownership' 'oral Contract Concerning Shares in a Deceased Estate' 'oppression' 'compulsory Purchase of Shares' 'winding Up' 'fiduciary Duties of Directors' 'company Deadlock' 'dividend Policy']
['corporations Law' 'equity' 'trusts' 'succession'] ['share Ownership and Beneficial Ownership' 'oral Contract Concerning Shares in a Deceased Estate' 'oppression' 'compulsory Purchase of Shares' 'winding Up' 'fiduciary Duties of Directors' 'company Deadlock' 'dividend Policy']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning Entitlement to Shares, Oppression Remedies and Winding Up / Final Judgment on Liability and Dismissal of 2781/02; Further Consideration of Orders in 2246/02

Legal Issues

  1. 1 ['Whether William Peter Cooke had an oral contractual entitlement to the shares in ALC held by William Norman Cooke at death.' "Whether the 20 shares acquired from Paul Cooke were beneficially owned by William Norman Cooke's estate or subject to a constructive trust in favour of William Peter Cooke." "Whether ALC's affairs had been conducted oppressively toward Erik Fairbairn as executor and beneficial 50 percent shareholder." "Whether the appropriate remedy was compulsory purchase of the estate's shares or winding up." 'Whether Derizu Pty Ltd should be wound up or dealt with by a less formal arrangement.']

Ratio Decidendi

William Peter Cooke failed to prove any binding oral agreement or constructive trust entitling him to William Norman Cooke's shares. The deceased's later wills and conduct were inconsistent with such an obligation, the alleged promises were indefinite, the claim was unsupported by corroboration, and Cooke's evidence was not accepted. The 20 shares purchased from Paul Cooke were beneficially owned by William Norman Cooke's estate. Since the deceased's death, ALC's affairs had been conducted oppressively toward Fairbairn because Cooke controlled the company in his own interests through irregular and excessive benefits, fictitious salary to his wife, misleading accounts, no dividend policy,...

Court Disposition

Proceedings 2781/02 dismissed with costs; Fairbairn's oppression claim in 2246/02 succeeded, with further consideration of orders for compulsory purchase or winding up.

Orders

  • ['In proceedings 2781 of 2002, the proceedings are dismissed with costs.' 'Further consideration was reserved in proceedings 2246 of 2002 on whether an order for compulsory purchase can be made within s.233 and is practicable, or whether ALC should be wound up.' 'Further consideration was reserved on the claims...