DOME RESOURCES NL v SILVER [2008] NSWCA 322

DOME RESOURCES NL v SILVER [2008] NSWCA 322

The appeal failed because the directors had authority under cl 11.5 of Dome's constitution to enter the retirement variation deed without first adopting a separate general scheme or plan; the payments to Goldspark and Fair Choice Ltd for Mr Silver's personal services were indirectly made available to him and formed part of his total remuneration for the Corporations Law s 200G payment limit, including services rendered before he became a director; the variation deed was supported by consideration from Mr Silver and Fair Choice Ltd; s 100 of the Civil Procedure Act 2005 (NSW) permitted pre-judgment interest where the judgment included an order for payment of money; and no error was shown...

Jurisdiction
Australia
Judgment Date
27 November 2008
Procedural Posture
Appeal and Cross Appeal From Supreme Court of New South Wales Decisions Silver V Dome Resources NL [2007] NSWSC 455 and Silver V Dome Resources NL [2007] NSWSC 699 / New South Wales Court of Appeal Judgment
Outcome
Appeal dismissed; cross-appeal dismissed; appellants ordered to pay the respondents' costs in the Court of Appeal.
Legal Topics
['company Constitution' "directors' Powers" 'retirement Benefits for Directors' 'termination Payments' 'member Approval' 'payment Limit' 'accounting Standards' 'consideration' 'specific Performance' 'pre Judgment Interest' 'costs']
['corporations' 'contract' 'equity' 'civil Procedure' 'statutory Interpretation'] ['company Constitution' "directors' Powers" 'retirement Benefits for Directors' 'termination Payments' 'member Approval' 'payment Limit' 'accounting Standards' 'consideration' 'specific Performance' 'pre Judgment Interest' 'costs']

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Procedural Posture

Appeal and Cross Appeal From Supreme Court of New South Wales Decisions Silver V Dome Resources NL [2007] NSWSC 455 and Silver V Dome Resources NL [2007] NSWSC 699 / New South Wales Court of Appeal Judgment

Legal Issues

  1. 1 ["Whether cl 11.5 of Dome's constitution required a pre-existing scheme or plan before the board could confer or agree to confer retirement benefits on a director." 'Whether payments made to Goldspark Pty Ltd and Fair Choice Ltd under consultancy agreements were included in the payment limit set by s 200G of the Corporations Law.' "Whether payments for Mr Silver's services before he became a director could be included in the s 200G calculation." 'Whether Mr Silver and Fair Choice Ltd provided consideration for the variation deed and had standing to seek equitable relief.' 'Whether Fair Choice Ltd should be paid pre-judgment interest on the amount ordered.' 'Whether the appellants should have obtained costs against Fair Choice Ltd because it did not recover in its own right.' "Whether the respondents' defensive cross-appeal should be determined."]

Ratio Decidendi

The appeal failed because the directors had authority under cl 11.5 of Dome's constitution to enter the retirement variation deed without first adopting a separate general scheme or plan; the payments to Goldspark and Fair Choice Ltd for Mr Silver's personal services were indirectly made available to him and formed part of his total remuneration for the Corporations Law s 200G payment limit, including services rendered before he became a director; the variation deed was supported by consideration from Mr Silver and Fair Choice Ltd; s 100 of the Civil Procedure Act 2005 (NSW) permitted pre-judgment interest where the judgment included an order for payment of money; and no error was shown...

Court Disposition

Appeal dismissed; cross-appeal dismissed; appellants ordered to pay the respondents' costs in the Court of Appeal.

Orders

  • ['Dismiss the appeal.' 'Dismiss the cross-appeal.' "Order that the appellants pay the respondents' costs in this Court."]