Iesini & Ors v Westrip Holdings Ltd & Ors

Iesini & Ors v Westrip Holdings Ltd & Ors

Permission to continue the derivative claim is refused in respect of the conspiracy, rescission, and restitution claims because the board acted on competent legal advice, no breach of duty is established, the estoppel and restitution claims are unsustainable as derivative claims, and no director acting in accordance with section 172 would continue the claim. The trust claim is adjourned to allow the board to reconsider its position, as it may be a strong claim but does not arise from director default. The injunction is continued only as regards the Northern and Southern Licences, subject to an unlimited cross-undertaking in damages.

Parties
Claimant: Dimitri Giacobbe Iesini; Claimant: Giacobbe Ienisi; Claimant: Christopher Read; Claimant: Rita Read; Defendant: Westrip Holdings Ltd; Defendant: Gregory Bennett Barnes; Defendant: Janine May Walker; Defendant: Dabinder Powar; Defendant: Hans Kristian Schønwandt; Defendant: Rimbal Pty Ltd; Defendant: Horrocks Enterprises Pty Ltd
Jurisdiction
England and Wales
Judgment Date
16 October 2009
Procedural Posture
Derivative Claim (companies Act 2006) / Permission to Continue Derivative Claim (substantive Hearing)
Outcome
Permission to continue derivative claim refused in part; application adjourned in part; injunction varied.
Legal Topics
Derivative Actions, Directors' Duties, Rescission of Contract, Estoppel, Unfair Prejudice, Restitution, Injunctions
Company Law Equity and Trusts Civil Procedure Derivative Actions Directors' Duties Rescission of Contract Estoppel Unfair Prejudice +2 more

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Parties

Dimitri Giacobbe Iesini

Claimant

Giacobbe Ienisi

Claimant

Christopher Read

Claimant

Rita Read

Claimant

Westrip Holdings Ltd

Defendant

Gregory Bennett Barnes

Defendant

Janine May Walker

Defendant

Dabinder Powar

Defendant

Hans Kristian Schønwandt

Defendant

Rimbal Pty Ltd

Defendant

Horrocks Enterprises Pty Ltd

Defendant

Procedural Posture

Derivative Claim (companies Act 2006) / Permission to Continue Derivative Claim (substantive Hearing)

Legal Issues

  1. 1 Whether permission should be granted to continue a derivative claim under Companies Act 2006 section 261
  2. 2 Whether the board of Westrip acted in breach of duty in accepting rescission of the share sale agreements (SSAs)
  3. 3 Whether an estoppel or waiver prevented rescission of the SSAs

Ratio Decidendi

Permission to continue the derivative claim is refused in respect of the conspiracy, rescission, and restitution claims because the board acted on competent legal advice, no breach of duty is established, the estoppel and restitution claims are unsustainable as derivative claims, and no director acting in accordance with section 172 would continue the claim. The trust claim is adjourned to allow the board to reconsider its position, as it may be a strong claim but does not arise from director default. The injunction is continued only as regards the Northern and Southern Licences, subject to an unlimited cross-undertaking in damages.

Court Disposition

Permission to continue derivative claim refused in part; application adjourned in part; injunction varied.

Orders

  • Permission to continue the claim refused as regards conspiracy, rescission, and restitution claims.
  • Application adjourned as regards the trust claim to allow the board to reconsider.