Stojcevski v Kogan [2018] NSWSC 127

Stojcevski v Kogan [2018] NSWSC 127

The plaintiff was not entitled to cause the company to seek leave to appeal or prosecute an appeal because she failed to satisfy essential preconditions in cl 6.1(b) of the deed of company arrangement: the Joint Memorandum did not clearly state, in substance or in terms, Senior Counsel's opinion that the company had reasonable prospects of success on appeal, and the plaintiff did not allow the administrators access to Senior Counsel after the Joint Memorandum was provided so they could clarify or seek explanation of it.

Jurisdiction
Australia
Judgment Date
16 February 2018
Procedural Posture
Equity Proceedings by Summons Concerning a Deed of Company Arrangement and Control of an Appeal / Final Hearing; Principal Judgment
Outcome
The plaintiff's summons was dismissed and the plaintiff was ordered to pay the defendants' costs of the proceedings.
Legal Topics
['deed of Company Arrangement' 'construction of Contract' 'control of Proceedings' 'reasonable Prospects of Success on Appeal' 'access to Senior Counsel' 'specific Performance']
['equity' 'corporations' 'contract' 'civil Procedure'] ['deed of Company Arrangement' 'construction of Contract' 'control of Proceedings' 'reasonable Prospects of Success on Appeal' 'access to Senior Counsel' 'specific Performance']

Case Brief

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Procedural Posture

Equity Proceedings by Summons Concerning a Deed of Company Arrangement and Control of an Appeal / Final Hearing; Principal Judgment

Legal Issues

  1. 1 ['Whether the plaintiff complied with cl 6.1(b)(i) of the deed of company arrangement by obtaining written advice from Senior Counsel that the company had reasonable prospects of success of appealing the judgment in Abourjaily v Parkview Estate Pty Ltd [2017] NSWSC 1256.' 'Whether the plaintiff complied with cl 6.1(b)(iii) of the deed of company arrangement by allowing the deed administrators access to Senior Counsel to clarify or seek explanation of the Written Opinion.' "Whether the plaintiff was entitled to cause the company to seek leave to appeal and prosecute an appeal from Darke J's judgment."]

Ratio Decidendi

The plaintiff was not entitled to cause the company to seek leave to appeal or prosecute an appeal because she failed to satisfy essential preconditions in cl 6.1(b) of the deed of company arrangement: the Joint Memorandum did not clearly state, in substance or in terms, Senior Counsel's opinion that the company had reasonable prospects of success on appeal, and the plaintiff did not allow the administrators access to Senior Counsel after the Joint Memorandum was provided so they could clarify or seek explanation of it.

Court Disposition

The plaintiff's summons was dismissed and the plaintiff was ordered to pay the defendants' costs of the proceedings.

Orders

  • ["The plaintiff's summons is dismissed." "The plaintiff is to pay the defendants' costs of the proceedings."]