O'Flaherty v Carcary [1934] HCA 37

O'Flaherty v Carcary [1934] HCA 37

A shareholder's notice of dissent given before the passing of a special resolution for company reconstruction is valid under section 176 of the Companies Act 1893 (W.A.), provided the notice unequivocally expresses dissent from the resolution if and when passed, and requires the liquidator either to abstain from carrying it into effect or to purchase the shareholder's interest.

Parties
Appellant: O'Flaherty; Respondent: Carcary
Jurisdiction
Australia
Procedural Posture
Appeal / Appeal From Full Court of the Supreme Court of Western Australia by Special Leave
Outcome
appeal allowed
Legal Topics
Company Reconstruction, Shareholder Dissent, Notice of Dissent, Companies Act 1893 (w.a.), Special Resolutions
Company Law Company Reconstruction Shareholder Dissent Notice of Dissent Companies Act 1893 (w.a.) Special Resolutions

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Parties

O'Flaherty

Appellant

Carcary

Respondent

Procedural Posture

Appeal / Appeal From Full Court of the Supreme Court of Western Australia by Special Leave

Legal Issues

  1. 1 Whether notice of dissent given by a shareholder prior to the passing of a special resolution for reconstruction complies with section 176 of the Companies Act 1893 (W.A.).

Ratio Decidendi

A shareholder's notice of dissent given before the passing of a special resolution for company reconstruction is valid under section 176 of the Companies Act 1893 (W.A.), provided the notice unequivocally expresses dissent from the resolution if and when passed, and requires the liquidator either to abstain from carrying it into effect or to purchase the shareholder's interest.

Court Disposition

appeal allowed

Orders

  • Discharge the order of the Full Court and the order of Dwyer J.
  • Declare that the appellant expressed his dissent in accordance with section 176 of the Companies Act 1893 to the special resolutions passed at the extraordinary general meeting held on 19th December 1932 and adjourned to 19th January 1933, and is entitled to be treated as a dissentient under sections 176 and 178.