CORPORATIONS — winding up — just and equitable ground — plaintiff alleges irremediable constitutional and administrative vacuum by reason of absence of members' voting rights and the circumstance that no directors are in office and none can be appointed — CORPORATIONS — management and administration — all issued shares are of classes expressed to carry no right to vote — certain unissued shares, if issued, would carry voting rights — two persons consider themselves to be in office as directors, one since 1973 and the other since 2004 — first person ostensibly appointed by special resolution of members having no voting rights — those members also the only directors in office at the time — directors had power to appoint directors — whether the appointment ostensibly made by special resolution of members took effect as appointment in fact made by the persons concerned as directors — held that it did — but such appointment "only until" next annual general meeting — appointee accordingly not in office once annual general meeting began — appointee did not retire "at" the meeting — provisions of constitution defining "annual general meeting" by reference to Companies Act 1961 and requiring that such meeting be held in accordance with that Act — effect of those provisions after the Companies (New South Wales) Code came to operate "to the exclusion of" the Companies Act 1961 — effect of the provisions after the First Corporate Law Simplification Act 1995 (Cth) abolished the statutory requirement that the particular company hold an annual general meeting — second putative director appointed by unilateral act of first putative director after all other directors had ceased to hold office — whether appointment would have been valid had appointor been validly in office as a director — held that it would — whether purported appointment susceptible to validation under s 1322(4)(a) — held that it is — whether conditions for making of validating order satisfied — held that they are — validating order to be made in respect of appointment of second putative director — that person then able to act to appoint another director to bring the number up to the quorum of two and thereby establish a functioning board — accordingly no irremediable constitutional and administrative vacuum despite absence for the time being of voting shares — CORPORATIONS — winding up — basis for winding up on the just and equitable ground not shown — obiter observations on questions that would have been relevant to decision to order winding up if basis shown — possibility that surplus assets in winding up will pass to Crown as bona vacantia — possible Anshun estoppel — possible relevance of plaintiff's delay or acquiescence
Case Details
Citation[2011] NSWSC 235
CourtNSWSC
JurisdictionNew South Wales
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