Ku v Song [2007] FCA 1189

Ku v Song [2007] FCA 1189

No valid transfer of shares took place to vest ownership in the third respondent, as no proper instrument of transfer was executed and delivered according to the Corporations Act and the company's constitution; the purported share gift was incomplete and not perfected in equity, so the applicant remained the shareholder. No trust (express or resulting) arose, and no unconscionable or misleading conduct was established. The settlement agreement of 25 October 2006 was repudiated and terminated; purported director changes after that date were of no effect.

Jurisdiction
Australia
Judgment Date
08 August 2007
Procedural Posture
Corporations/contract/trust Proceedings (share Transfer Dispute) / Judgment After Trial
Outcome
Applicant succeeds in obtaining declaratory relief; respondents' cross-claims on trust and conduct fail.
Legal Topics
['share Transfers in Unlisted Companies' 'gift Inter Vivos' 'express and Resulting Trusts' 'validity/uncertainty in Contract Formation' 'unconscionable Conduct' 'misleading or Deceptive Conduct']
['corporations Law' 'contract Law' 'equity and Trusts' 'trade Practices'] ['share Transfers in Unlisted Companies' 'gift Inter Vivos' 'express and Resulting Trusts' 'validity/uncertainty in Contract Formation' 'unconscionable Conduct' 'misleading or Deceptive Conduct']

Case Brief

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Procedural Posture

Corporations/contract/trust Proceedings (share Transfer Dispute) / Judgment After Trial

Legal Issues

  1. 1 ['Whether a valid transfer of shares in Kjun International Pty Ltd from the applicant to the third respondent occurred' 'Whether a trust (express or resulting) arose over the shares' 'Whether there was a valid and enforceable settlement of earlier litigation' 'Whether unconscionable or misleading conduct was engaged in by the respondents']

Ratio Decidendi

No valid transfer of shares took place to vest ownership in the third respondent, as no proper instrument of transfer was executed and delivered according to the Corporations Act and the company's constitution; the purported share gift was incomplete and not perfected in equity, so the applicant remained the shareholder. No trust (express or resulting) arose, and no unconscionable or misleading conduct was established. The settlement agreement of 25 October 2006 was repudiated and terminated; purported director changes after that date were of no effect.

Court Disposition

Applicant succeeds in obtaining declaratory relief; respondents' cross-claims on trust and conduct fail.

Orders

  • ['The third respondent has no right, title or interest in any shares in the fourth respondent.' 'The purported removal of the applicant as director, secretary and public officer of the fourth respondent and purported replacement by the first respondent, by a resolution of the third respondent dated 15 December 2006,...