Kulakovski v Kurmond Homes Pty Ltd [2023] FCA 992

Kulakovski v Kurmond Homes Pty Ltd [2023] FCA 992

Because a bona fide dispute existed as to whether the Kurmond Homes Shareholders' Agreement was valid and enforceable, there had been a material change of circumstances in relation to Kurmond Homes warranting leave to withdraw Undertaking 6(a). In relation to Kurmond Properties, justice between the parties required variation of Undertaking 6(b) by extending the time for compliance so that necessary searches could be made.

Jurisdiction
Australia
Judgment Date
16 August 2023
Procedural Posture
Corporations Urgent Application for Withdrawal of Undertakings to Transfer Shares / Urgent Interlocutory Application Before the Commercial and Corporations Duty Judge
Outcome
Leave granted to withdraw Undertaking 6(a), Undertaking 6(b) varied by extending time, and the 7 September 2023 hearing vacated.
Legal Topics
['withdrawal of Undertakings' 'transfer of Shares' 'shareholders Agreement' 'oppression' 'interlocutory Orders']
['corporations Law'] ['withdrawal of Undertakings' 'transfer of Shares' 'shareholders Agreement' 'oppression' 'interlocutory Orders']

Case Brief

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Procedural Posture

Corporations Urgent Application for Withdrawal of Undertakings to Transfer Shares / Urgent Interlocutory Application Before the Commercial and Corporations Duty Judge

Legal Issues

  1. 1 ['Whether the fifth defendant should be granted leave to withdraw Undertaking 6(a) concerning registration of the transfer of shares in Kurmond Homes Pty Limited.' 'Whether Undertaking 6(b) concerning registration of the transfer of shares in Kurmond Properties Pty Limited should be varied to allow further time.' 'Whether there had been a material change of circumstances warranting withdrawal or variation of undertakings given to the Court.' "Whether the existence and validity of a purported shareholders' agreement should be determined on a final basis as soon as practicable."]

Ratio Decidendi

Because a bona fide dispute existed as to whether the Kurmond Homes Shareholders' Agreement was valid and enforceable, there had been a material change of circumstances in relation to Kurmond Homes warranting leave to withdraw Undertaking 6(a). In relation to Kurmond Properties, justice between the parties required variation of Undertaking 6(b) by extending the time for compliance so that necessary searches could be made.

Court Disposition

Leave granted to withdraw Undertaking 6(a), Undertaking 6(b) varied by extending time, and the 7 September 2023 hearing vacated.

Orders

  • ['Order 6 of the Orders dated 10 August 2023 be varied so that the fifth defendant be given leave to withdraw the undertaking referred to in 6(a).' 'Order 6 of the Orders dated 10 August 2023 be varied so that the time for taking all steps reasonably necessary to comply with the undertaking referred to in 6(b) be...