In the matter of Buel Maintenance Services Pty Limited and Buel Inspection Testing and Monitoring Services Pty Limited [2015] NSWSC 1407

In the matter of Buel Maintenance Services Pty Limited and Buel Inspection Testing and Monitoring Services Pty Limited [2015] NSWSC 1407

Leave to proceed against the Second Defendant was granted because the proceedings were sufficiently founded on an alleged contract made in New South Wales. The interlocutory injunctions were refused because, although there was a serious question to be tried about the validity of the transfer to the Second Defendant and termination of the share transfer agreement, the Plaintiff had not established a serious question that he was presently the registered shareholder or director; the relief sought was too broad, would effectively assume success on final issues, would not resolve the bank's uncertainty, and the balance of convenience did not favour orders with potential adverse effects on Mr...

Jurisdiction
Australia
Judgment Date
31 August 2015
Procedural Posture
Equity Corporations List; Procedural and Other Ruling / Interlocutory Application for Injunctions and Leave to Proceed Against the Second Defendant
Outcome
Leave granted to proceed against the Second Defendant; interlocutory process dismissed; Plaintiff ordered to pay 75% of the First Defendant's costs of the application.
Legal Topics
['interlocutory Injunctions' 'balance of Convenience' 'leave to Proceed Against Overseas Defendant' 'share Ownership Dispute' 'director Identity Dispute' 'provisional Liquidator']
['civil Procedure' 'corporations'] ['interlocutory Injunctions' 'balance of Convenience' 'leave to Proceed Against Overseas Defendant' 'share Ownership Dispute' 'director Identity Dispute' 'provisional Liquidator']

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Procedural Posture

Equity Corporations List; Procedural and Other Ruling / Interlocutory Application for Injunctions and Leave to Proceed Against the Second Defendant

Legal Issues

  1. 1 ['Whether leave should be granted under r 11.4 of the Uniform Civil Procedure Rules 2005 (NSW) to proceed against the Second Defendant.' 'Whether the Plaintiff established a serious question to be tried in relation to ownership of shares and directorship of BMS and BIT.' 'Whether damages would be an adequate remedy and whether the balance of convenience warranted interlocutory relief restraining interference with company payments, management, or holding out as shareholder.' 'Whether a provisional liquidator could or should be appointed.']

Ratio Decidendi

Leave to proceed against the Second Defendant was granted because the proceedings were sufficiently founded on an alleged contract made in New South Wales. The interlocutory injunctions were refused because, although there was a serious question to be tried about the validity of the transfer to the Second Defendant and termination of the share transfer agreement, the Plaintiff had not established a serious question that he was presently the registered shareholder or director; the relief sought was too broad, would effectively assume success on final issues, would not resolve the bank's uncertainty, and the balance of convenience did not favour orders with potential adverse effects on Mr...

Court Disposition

Leave granted to proceed against the Second Defendant; interlocutory process dismissed; Plaintiff ordered to pay 75% of the First Defendant's costs of the application.

Orders

  • ['Grant leave to the plaintiff pursuant to rule 11.4 of the Uniform Civil Procedure Rules, to proceed against the Second Defendant, Mortlock McCormack Law Trustee Company (2006) Limited.' 'The Interlocutory Process dated 27 August 2015 be dismissed with costs.' "The plaintiff pay 75% of the First Defendant's costs...