Hopkins v Foyster [2001] NSWSC 915

Hopkins v Foyster [2001] NSWSC 915

Interim ex parte relief was justified because there was a serious question to be tried that the Foyster interests' voting in favour of the impugned resolutions would breach contractual arrangements among shareholders, several resolutions concerned matters reserved to the directors and would be futile as general meeting resolutions, and the balance of convenience favoured preserving the existing contractual and corporate position given the Foyster interests' clear support for the resolutions and their majority voting power.

Jurisdiction
Australia
Judgment Date
12 October 2001
Procedural Posture
Corporations; Urgent Ex Parte Application for Orders Restraining Voting at a Company Meeting / Ex Parte Interlocutory Application
Outcome
Ex parte orders granted.
Legal Topics
['meeting of Members' 'replaceable Rules' 'powers of Directors and General Meeting' 'shareholder Voting' 'shareholders Agreement' 'interim Injunctive Relief' 'balance of Convenience']
['corporations' 'equity' 'contract'] ['meeting of Members' 'replaceable Rules' 'powers of Directors and General Meeting' 'shareholder Voting' 'shareholders Agreement' 'interim Injunctive Relief' 'balance of Convenience']

Case Brief

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Procedural Posture

Corporations; Urgent Ex Parte Application for Orders Restraining Voting at a Company Meeting / Ex Parte Interlocutory Application

Legal Issues

  1. 1 ['Whether resolutions concerning removal and appointment of a company secretary, appointment of a non-executive chairman and relocation of the registered office were within the exclusive province of the directors rather than the general meeting.' 'Whether voting to remove Mr Hopkins as a director would arguably infringe contractual rights under shareholders agreements concerning the composition of the board.' 'Whether the balance of convenience justified ex parte interim orders restraining the Foyster interests from voting in favour of the impugned resolutions before the meeting occurred.']

Ratio Decidendi

Interim ex parte relief was justified because there was a serious question to be tried that the Foyster interests' voting in favour of the impugned resolutions would breach contractual arrangements among shareholders, several resolutions concerned matters reserved to the directors and would be futile as general meeting resolutions, and the balance of convenience favoured preserving the existing contractual and corporate position given the Foyster interests' clear support for the resolutions and their majority voting power.

Court Disposition

Ex parte orders granted.

Orders

  • ['Upon the plaintiffs giving the usual undertaking as to damages, orders were made in terms of the amended form of order restraining voting in favour of the impugned resolutions.' 'In order 1, "6pm" was substituted for "5pm".' 'Order 3 was modified so that the matter was stood over to 16 October 2001 before Barrett...