In the matter of Hillsea Pty Ltd [2017] NSWSC 1870

In the matter of Hillsea Pty Ltd [2017] NSWSC 1870

Orders should be made against the company, not an individual director, to set up and correct the register of members and to deliver a share certificate. The court can require the company to perform its statutory obligations; if the company fails to comply, enforcement mechanisms may be used against its officers, but direct orders against a director are inappropriate unless as a mechanism for substituted performance where no officers exist.

Parties
First Plaintiff/first Cross Defendant: Elizabeth Mary McIvor; Second Plaintiff/second Cross Defendant: Maureen Ann Joseph; First Defendant/third Cross Defendant: Peter Anthony Joseph; Second Defendant/cross Claimant: Hillsea Pty Ltd
Jurisdiction
Australia
Judgment Date
14 November 2017
Procedural Posture
Equity Corporations List / Principal Judgment
Outcome
Orders made against second defendant company to set up register, rectify register, and deliver share certificate to plaintiffs.
Legal Topics
Register of Members, Rectification of Register, Transmission of Shares, Company Obligations, Corporate Procedure
Corporations Law Register of Members Rectification of Register Transmission of Shares Company Obligations Corporate Procedure

Case Brief

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Parties

Elizabeth Mary McIvor

First Plaintiff/first Cross Defendant

Maureen Ann Joseph

Second Plaintiff/second Cross Defendant

Peter Anthony Joseph

First Defendant/third Cross Defendant

Hillsea Pty Ltd

Second Defendant/cross Claimant

Procedural Posture

Equity Corporations List / Principal Judgment

Legal Issues

  1. 1 Whether an order should be made under Corporations Act 2001 (Cth) s 1322 and/or s 175 requiring the company to set up a register of members
  2. 2 Whether order rectifying contravention should be made against the company or a director
  3. 3 How to enforce compliance when company lacks sufficient directors to act

Ratio Decidendi

Orders should be made against the company, not an individual director, to set up and correct the register of members and to deliver a share certificate. The court can require the company to perform its statutory obligations; if the company fails to comply, enforcement mechanisms may be used against its officers, but direct orders against a director are inappropriate unless as a mechanism for substituted performance where no officers exist.

Court Disposition

Orders made against second defendant company to set up register, rectify register, and deliver share certificate to plaintiffs.

Orders

  • Second defendant Hillsea Pty Ltd by 21 November 2017 set up a register of members as required by Corporations Act 2001 (Cth) ss 168, 169.
  • Pursuant to s 175, second defendant Hillsea Pty Ltd to correct the register of members by entering the plaintiffs (jointly, with first plaintiff's name first) as holders of class A, C, D, and E shares previously held by Marie Stella Joseph.