In the matter of Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280

In the matter of Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280

Interest on the compulsory share purchase price (and certain derivative and employment claims) should be allowed at prescribed rates, adjusted to credit dividends already received by the outgoing member, ensuring fairness and preventing oppression by the majority. Costs responsibility should generally follow overall success but may be apportioned where the plaintiff failed or abandoned significant issues; here, 75% of the plaintiff’s costs are to be paid by defendants. Certain interlocutory and freezing orders are to be varied or maintained as appropriate to protect parties’ interests pending final resolution.

Jurisdiction
Australia
Judgment Date
07 March 2018
Procedural Posture
Corporations Members Remedy Oppression Costs Application / Post Judgment (costs and Consequential Orders)
Outcome
Orders made granting compulsory purchase with interest adjustment, compensation and employment claims with interest, 75% costs awarded to plaintiff, stay of some compensation judgments, variation and maintenance of interlocutory and freezing orders.
Legal Topics
['oppression Remedies' 'compulsory Share Purchase' 'interest on Purchase Price' 'derivative Claims' 'apportionment of Costs' 'gross Sum Costs' 'freezing Orders' 'interest on Costs']
['corporations Law' 'equity' 'civil Procedure'] ['oppression Remedies' 'compulsory Share Purchase' 'interest on Purchase Price' 'derivative Claims' 'apportionment of Costs' 'gross Sum Costs' 'freezing Orders' 'interest on Costs']

Case Brief

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Procedural Posture

Corporations Members Remedy Oppression Costs Application / Post Judgment (costs and Consequential Orders)

Legal Issues

  1. 1 ["Whether interest should be added to the compulsory purchase price for the excluded member's shares" 'Whether pre-judgment interest should be awarded on compensation and employment claims' 'How to adjust for dividends received post-valuation' 'How costs should be apportioned given the mixed results of issues and offers' 'Whether interlocutory orders and injunctions should be set aside or varied post-judgment']

Ratio Decidendi

Interest on the compulsory share purchase price (and certain derivative and employment claims) should be allowed at prescribed rates, adjusted to credit dividends already received by the outgoing member, ensuring fairness and preventing oppression by the majority. Costs responsibility should generally follow overall success but may be apportioned where the plaintiff failed or abandoned significant issues; here, 75% of the plaintiff’s costs are to be paid by defendants. Certain interlocutory and freezing orders are to be varied or maintained as appropriate to protect parties’ interests pending final resolution.

Court Disposition

Orders made granting compulsory purchase with interest adjustment, compensation and employment claims with interest, 75% costs awarded to plaintiff, stay of some compensation judgments, variation and maintenance of interlocutory and freezing orders.

Orders

  • ['Second to Fourth Defendants to purchase Plaintiff’s shares for $743,283.22, less loan account balance; Plaintiff to transfer shares upon payment and receipt of documentation.' 'First Defendant to pay Plaintiff $10,804.68 (with interest).' 'Second Defendant to pay First Defendant $95,878.26 (incl. interest).'...