In the matter of Alleta Pty Ltd [2015] NSWSC 2064

In the matter of Alleta Pty Ltd [2015] NSWSC 2064

Although there was a serious question to be tried as to whether Natalie Cernigoi was beneficially entitled to the shares, whether Mary Melhem was trustee entitled to control the company, and whether Stella Tzonis was not entitled to be regarded as shareholder or director, the balance of convenience did not favour restraining the auction sale. The property was an investment property, any appreciation was speculative, the mortgage term had expired with a notice served under (NSW) Real Property Act 1900, s 57(2)(b), body corporate proceedings for levies had been commenced, sale appeared practically inevitable, marketing appeared ordinary and appropriate, the proposed auction was at arm's...

Jurisdiction
Australia
Judgment Date
05 June 2015
Procedural Posture
Application for Interlocutory Injunction in the Equity Corporations List / Hearing of Application for Interlocutory Relief Restraining Auction Sale of Property
Outcome
Application for injunction restraining the auction sale refused; injunction restraining dealing with proceeds of sale granted until further order, subject to specified exceptions; costs of the interlocutory application ordered to be costs in the proceedings.
Legal Topics
['interlocutory Injunctions' 'beneficial Ownership of Shares' 'corporate Governance' 'asic Database' 'sale of Mortgaged Property' 'balance of Convenience']
['equity' 'corporations' 'property'] ['interlocutory Injunctions' 'beneficial Ownership of Shares' 'corporate Governance' 'asic Database' 'sale of Mortgaged Property' 'balance of Convenience']

Case Brief

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Procedural Posture

Application for Interlocutory Injunction in the Equity Corporations List / Hearing of Application for Interlocutory Relief Restraining Auction Sale of Property

Legal Issues

  1. 1 ['Whether there was a serious question to be tried that Natalie Cernigoi was beneficially entitled to the shareholding and that Mary Melhem was entitled to have the shares vested in her as trustee and control the composition of the board of directors.' 'Whether Stella Tzonis was entitled to be regarded as a shareholder or director of Alleta Pty Ltd.' 'Whether the balance of convenience favoured restraining the auction sale of the Leichhardt property.' 'Whether there was a significant risk that the auction sale would be at an undervalue.' 'Whether dealings with the proceeds of sale should be restrained pending further order.']

Ratio Decidendi

Although there was a serious question to be tried as to whether Natalie Cernigoi was beneficially entitled to the shares, whether Mary Melhem was trustee entitled to control the company, and whether Stella Tzonis was not entitled to be regarded as shareholder or director, the balance of convenience did not favour restraining the auction sale. The property was an investment property, any appreciation was speculative, the mortgage term had expired with a notice served under (NSW) Real Property Act 1900, s 57(2)(b), body corporate proceedings for levies had been commenced, sale appeared practically inevitable, marketing appeared ordinary and appropriate, the proposed auction was at arm's...

Court Disposition

Application for injunction restraining the auction sale refused; injunction restraining dealing with proceeds of sale granted until further order, subject to specified exceptions; costs of the interlocutory application ordered to be costs in the proceedings.

Orders

  • ['Upon the plaintiff, by her counsel, giving the usual undertaking as to damages, until further order the defendants be restrained from, by themselves, their servants or agents, dealing with the proceeds of sale of unit 31, 481-483 Parramatta Road, Leichhardt in the State of New South Wales, being the land comprised...