In the matter of Jervois Mining Ltd [2016] NSWSC 1650

In the matter of Jervois Mining Ltd [2016] NSWSC 1650

The Court found that the deficiency of notice under s 203D(2) was a procedural irregularity capable of being cured under s 1322(4) Corporations Act. The directors acted honestly and no substantial injustice would result from validating the calling of the EGM. Given the acrimony between shareholders and directors and the risk of procedural misadventure, it was just and equitable to appoint an independent chairman to preside over the EGM.

Jurisdiction
Australia
Judgment Date
23 November 2016
Procedural Posture
Corporations – Members' Remedies and Internal Company Disputes / Final Hearing – Orders
Outcome
Relief granted under s 1322(4) – notice of EGM deemed valid; independent chairman of EGM appointed; costs ordered.
Legal Topics
['extraordinary General Meeting' 'director Removal' 'procedural Irregularity' 'court Appointed Chairman' 'members’ Rights' 'notice Requirements']
['corporations Law' 'equity'] ['extraordinary General Meeting' 'director Removal' 'procedural Irregularity' 'court Appointed Chairman' 'members’ Rights' 'notice Requirements']

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Procedural Posture

Corporations – Members' Remedies and Internal Company Disputes / Final Hearing – Orders

Legal Issues

  1. 1 ['Whether a deficiency of notice under s 203D(2) Corporations Act 2001 Cth is a procedural irregularity which can be cured by court order under s 1322(4)' 'Whether section 1322(4) Corporations Act grants power to validate the EGM and appoint an independent chairman' 'Who should chair the EGM (directors or court appointee)' 'What power and duties attach to the chairman of the EGM']

Ratio Decidendi

The Court found that the deficiency of notice under s 203D(2) was a procedural irregularity capable of being cured under s 1322(4) Corporations Act. The directors acted honestly and no substantial injustice would result from validating the calling of the EGM. Given the acrimony between shareholders and directors and the risk of procedural misadventure, it was just and equitable to appoint an independent chairman to preside over the EGM.

Court Disposition

Relief granted under s 1322(4) – notice of EGM deemed valid; independent chairman of EGM appointed; costs ordered.

Orders

  • ['Declare under s 1322(4) Corporations Act 2001 Cth that the notice of extraordinary general meeting despatched to members on 25 October 2016 is not invalid for contravention of s 203D(2) and s 249O(1).' 'Order under s 1322(4) Corporations Act 2001 that Dr R P Austin be appointed chairman of the extraordinary...