Carpathian Resources Ltd v Hendriks [2011] FCA 41

Carpathian Resources Ltd v Hendriks [2011] FCA 41

The Second Injunction did not constitute a restriction attaching to OAG's shares under reg 43.1 of Carpathian's constitution and did not affect OAG's constitutional entitlement to vote; Mr Hendriks acted in good faith and within power in admitting OAG's votes at the EGM. At the AGM, although Mr Hammer was eligible to be chairperson, the members present did not choose him or anyone else as chairperson; the meeting fell into complete disarray, the purported poll was called without authority and was affected by fundamental procedural irregularity, and s 1322 relief was not apt. Accordingly the EGM resolutions failed, no resolutions were validly passed at the AGM, the applicants' application...

Jurisdiction
Australia
Judgment Date
02 February 2011
Procedural Posture
Corporations Proceeding Concerning Declaratory Relief as to the Lawful Directors of Carpathian Resources Ltd and a Cross Claim / Final Judgment After Hearing
Outcome
Application dismissed; judgment for the cross-claimants to the extent of declarations and orders.
Legal Topics
['extraordinary General Meeting' 'annual General Meeting' 'chairperson of Meeting' 'shareholder Voting Rights' 'foreign Injunction' 'company Constitution' 'corporate Representative' 'poll' 'procedural Irregularity' 'rectification of ASIC Register']
['corporations Law'] ['extraordinary General Meeting' 'annual General Meeting' 'chairperson of Meeting' 'shareholder Voting Rights' 'foreign Injunction' 'company Constitution' 'corporate Representative' 'poll' 'procedural Irregularity' 'rectification of ASIC Register']

Case Brief

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Procedural Posture

Corporations Proceeding Concerning Declaratory Relief as to the Lawful Directors of Carpathian Resources Ltd and a Cross Claim / Final Judgment After Hearing

Legal Issues

  1. 1 ["Whether the chairperson of the EGM validly accepted and counted OAG Fund Ltd's votes despite the Second Injunction made by the Eastern Caribbean Supreme Court (Nevis Circuit)." "Whether the Second Injunction was a restriction attaching to OAG's shares for the purposes of reg 43.1 of Carpathian's constitution." "Whether Mr Hendriks acted in good faith and for a proper purpose in admitting OAG's votes at the EGM." "Who was eligible to be chairperson at the AGM under Carpathian's constitution." 'Whether Mr Hammer was appointed chairperson of the AGM.' 'Whether any poll or resolutions at the AGM were effective and whether relief under s 1322 of the Corporations Act 2001 (Cth) was apt.' 'Whether the AGM fell into disarray and should be treated as adjourned.']

Ratio Decidendi

The Second Injunction did not constitute a restriction attaching to OAG's shares under reg 43.1 of Carpathian's constitution and did not affect OAG's constitutional entitlement to vote; Mr Hendriks acted in good faith and within power in admitting OAG's votes at the EGM. At the AGM, although Mr Hammer was eligible to be chairperson, the members present did not choose him or anyone else as chairperson; the meeting fell into complete disarray, the purported poll was called without authority and was affected by fundamental procedural irregularity, and s 1322 relief was not apt. Accordingly the EGM resolutions failed, no resolutions were validly passed at the AGM, the applicants' application...

Court Disposition

Application dismissed; judgment for the cross-claimants to the extent of declarations and orders.

Orders

  • ['Maximiliaan Henri Danishevski, Mitchell Aaron Hammer, David Eric Hammer, Hon. Timothy Charles Thornton Lewin, Kirill Dragun, Luigi Gagliardo, Paul DeCailly and Guido Vivi are not and have not been directors of Carpathian Resources Ltd.' 'Michael Petrus Hendriks has not been a director of Carpathian Resources Ltd...