POMFRET & ORS v. CUMBERLAND & ANOR [2000] NSWSC 400

POMFRET & ORS v. CUMBERLAND & ANOR [2000] NSWSC 400

The notice of motion was dismissed because Mr Cumberland lacked standing to enforce the Unitholders' Agreement, no irreparable or significant injury was shown from allowing steps toward resolution of the trust, injunctive relief would undesirably postpone resolution of the trust affairs, appointment of a provisional liquidator was inappropriate given the undeveloped oppression claim and likely practical consequences, and the proposed variation of the Mareva order would replace practical protection over an identified deposit with an unduly complex and insufficiently protective arrangement.

Jurisdiction
Australia
Judgment Date
10 May 2000
Procedural Posture
Corporations Proceedings Involving Cross Claim for Winding Up on Alleged Oppression and Practice and Procedure Issues Concerning Mareva Orders / Interlocutory Notice of Motion Seeking Injunction, Appointment of Provisional Liquidator, and Variation of Mareva Order
Outcome
Notice of motion dismissed with costs; cross-claim directed to continue on pleadings.
Legal Topics
['interlocutory Injunction' 'unit Trust Vesting and Distribution' "unitholders' Agreement" 'standing to Enforce Contract' 'winding Up on Oppression' 'provisional Liquidator' 'mareva Order']
['corporations' 'equity' 'practice and Procedure'] ['interlocutory Injunction' 'unit Trust Vesting and Distribution' "unitholders' Agreement" 'standing to Enforce Contract' 'winding Up on Oppression' 'provisional Liquidator' 'mareva Order']

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Procedural Posture

Corporations Proceedings Involving Cross Claim for Winding Up on Alleged Oppression and Practice and Procedure Issues Concerning Mareva Orders / Interlocutory Notice of Motion Seeking Injunction, Appointment of Provisional Liquidator, and Variation of Mareva Order

Legal Issues

  1. 1 ['Whether the plaintiffs should be restrained from passing a proposed resolution at an extraordinary general meeting of Two Lands Group Pty Limited to accelerate the Vesting Day of the Two Lands Unit Trust and distribute assets to unitholders.' "Whether Mr Cumberland had standing as a director to enforce rights under the Unitholders' Agreement." "Whether the proposed meeting or resolution should be restrained as a breach of clause 12(f) of the Unitholders' Agreement requiring unanimous director decisions for significant decisions." 'Whether a provisional liquidator should be appointed to Two Lands Group Pty Limited and associated companies.' "Whether the existing Mareva order restraining dealings with Mr Cumberland's term deposit should be varied to permit use of the funds for a property purchase and mortgage arrangement."]

Ratio Decidendi

The notice of motion was dismissed because Mr Cumberland lacked standing to enforce the Unitholders' Agreement, no irreparable or significant injury was shown from allowing steps toward resolution of the trust, injunctive relief would undesirably postpone resolution of the trust affairs, appointment of a provisional liquidator was inappropriate given the undeveloped oppression claim and likely practical consequences, and the proposed variation of the Mareva order would replace practical protection over an identified deposit with an unduly complex and insufficiently protective arrangement.

Court Disposition

Notice of motion dismissed with costs; cross-claim directed to continue on pleadings.

Orders

  • ['The notice of motion of 5 May 2000 is dismissed with costs.' "On the cross-claim dated 2 March 2000 the cross-claim is to continue on pleadings, the cross-claimant's statement of claim to be filed and served within 14 days, and thereafter proceedings in accordance with the Rules of Court."]