Sumiseki Materials Co Ltd -v- Wambo Coal Pty Ltd [No.2] [2013] NSWSC 488

Sumiseki Materials Co Ltd -v- Wambo Coal Pty Ltd [No.2] [2013] NSWSC 488

The profit referable under the company's constitution for dividend purposes is on a stand alone, not consolidated, company basis. No rectification is available as there was no requisite outward communication of common intention; post-judgment interest is payable at the prescribed statutory rate, not the contract rate; a stay of the order modifying the constitution is refused.

Parties
Plaintiff: Sumiseki Materials Co Ltd; First Defendant: Wambo Coal Pty Ltd (ACN 000 668 057); Second Defendant: Peabody Australia Mining Limited (ACN 002 818 699)
Jurisdiction
Australia
Judgment Date
03 May 2013
Procedural Posture
Principal Judgment / Post Judgment Applications After Principal Construction Judgment
Outcome
Profit determined on a stand alone (not consolidated) basis; rectification refused; post-judgment interest at prescribed rate; stay of modification order refused.
Legal Topics
Company Constitution Construction, Dividends, Interest on Judgments, Rectification, Stay of Orders
Corporations Law Equity Civil Procedure Company Constitution Construction Dividends Interest on Judgments Rectification Stay of Orders

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Parties

Sumiseki Materials Co Ltd

Plaintiff

Wambo Coal Pty Ltd (ACN 000 668 057)

First Defendant

Peabody Australia Mining Limited (ACN 002 818 699)

Second Defendant

Procedural Posture

Principal Judgment / Post Judgment Applications After Principal Construction Judgment

Legal Issues

  1. 1 Whether 'profit of the company available for dividend purposes' means company on a stand alone or consolidated basis
  2. 2 Whether constitution/amending contract should be rectified
  3. 3 Whether post judgment interest should be at contract or prescribed rate

Ratio Decidendi

The profit referable under the company's constitution for dividend purposes is on a stand alone, not consolidated, company basis. No rectification is available as there was no requisite outward communication of common intention; post-judgment interest is payable at the prescribed statutory rate, not the contract rate; a stay of the order modifying the constitution is refused.

Court Disposition

Profit determined on a stand alone (not consolidated) basis; rectification refused; post-judgment interest at prescribed rate; stay of modification order refused.

Orders

  • Profit of the company is to be calculated on a stand alone basis (not consolidated).
  • Rectification of the Restructure Agreement/constitution refused.