Vista Capital Developments Pty Ltd & anor v Talmarc Pty Ltd & 7 ors [2008] NSWSC 935

Vista Capital Developments Pty Ltd & anor v Talmarc Pty Ltd & 7 ors [2008] NSWSC 935

ASIC records, supported by s 1274B and not contradicted by evidence, established Mr Amargianitakis' appointment as director, and the evidence did not establish an effective removal, resignation or transfer of Vista's or Family T's shares. Because the plaintiffs elected to enforce the settlement deed after default in payment of the second instalment, and there was no apparent defence to that claim, judgment should be entered against the liable defendants for the outstanding amount and interest. The eighth defendant had sufficient notice for the amended summons to be taken as served. On the cross-claim, the deed concerning Family T's shares was void and Talmarc's share register should be...

Jurisdiction
Australia
Judgment Date
12 August 2008
Procedural Posture
Equity Division Corporations List Proceeding by Amended Summons With Cross Claim / Ex Tempore Judgment and Orders
Outcome
Judgment for the first plaintiff against the first, second, fifth, sixth, seventh and eighth defendants; cross-claim relief granted to the fourth defendant; proceedings adjourned for mention.
Legal Topics
['directorship and Shareholding Records' 'written Consent to Act as Director' 'asic National Database Evidence' 'settlement Deed Enforcement' 'service and Notice of Proceedings' 'rectification of Share Register']
['corporations' 'deeds' 'procedure'] ['directorship and Shareholding Records' 'written Consent to Act as Director' 'asic National Database Evidence' 'settlement Deed Enforcement' 'service and Notice of Proceedings' 'rectification of Share Register']

Case Brief

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Procedural Posture

Equity Division Corporations List Proceeding by Amended Summons With Cross Claim / Ex Tempore Judgment and Orders

Legal Issues

  1. 1 ['Whether ASIC national database records established that Mr Amargianitakis was appointed a director of Talmarc Pty Ltd.' 'Whether absence of written consent under Corporations Act 2001 (Cth), s 201D meant Mr Amargianitakis was not validly appointed as a director.' 'Whether Mr Amargianitakis and Mr Thackray had been removed or had effectively resigned as directors, and whether Vista Capital and Family T ceased to hold shares.' 'Whether the plaintiffs, after default under the settlement deed, had to elect between enforcing the compromise and pursuing the original substantive relief.' 'Whether the amended summons should be taken to have been served on the eighth defendant and whether defendants had notice of the proceeding.' "Whether the deed concerning Family T's shares should be declared void and the share register rectified."]

Ratio Decidendi

ASIC records, supported by s 1274B and not contradicted by evidence, established Mr Amargianitakis' appointment as director, and the evidence did not establish an effective removal, resignation or transfer of Vista's or Family T's shares. Because the plaintiffs elected to enforce the settlement deed after default in payment of the second instalment, and there was no apparent defence to that claim, judgment should be entered against the liable defendants for the outstanding amount and interest. The eighth defendant had sufficient notice for the amended summons to be taken as served. On the cross-claim, the deed concerning Family T's shares was void and Talmarc's share register should be...

Court Disposition

Judgment for the first plaintiff against the first, second, fifth, sixth, seventh and eighth defendants; cross-claim relief granted to the fourth defendant; proceedings adjourned for mention.

Orders

  • ['The Amended Summons be taken to have been served on the eighth defendant on 3 July 2008.' 'Upon the undertaking of plaintiffs that upon payment they will deliver to the defendants consent orders in form of Annexure A to the Deed of 1 April 2008 executed on their behalf, judgment that the first defendant Talmarc,...