This article briefly examines the circumstances wherein the conduct of a majority shareholder or a director of a company can be considered oppressive and when it may not. The list is not meant to be exhaustive as every case turns on its own facts.
Where is the starting point?
Section 232 of the Corporations Act 2011 (Cth) defines oppressive conduct as conduct that is contrary to the interests of the shareholders as a whole. This means that the conduct should be examined as a whole within the context of the full circumstances of the particular case.
Oppressive conduct in a nutshell
The list can be wide, however, for the purposes of this article, any conduct, specifically, by a majority shareholder or a director of a company that is tainted with unfairness, harsh, unjust or inequitable is said to be oppressive.
Can I bring an oppression action against a company in liquidation?
The short answer is no unless the liquidator consents or the shareholder is able to persuade a court that leave should be granted for this action to take place.
What is the test for a conduct to be found oppressive?
The High Court of Australia has settled the test in Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459. The Court in that case directed that the conduct in question should be examined as a whole, within the context of the full circumstances of the case as opposed to being viewed in isolation.
What are the examples of oppressive conduct?
Again, the list is not exhaustive, however, the following can be considered oppressive conduct:
Breach of fiduciary duties of directors;
Improper diversion of a business to another entity;
Appointment of an administrator against members when done for invalid or illegitimate purposes;
Excessive remuneration; and
Most importantly, denial of access to information when demanded by a shareholder of a company.
What may not amount to oppressive conduct?
Again, the list is not exhaustive, however, the following may not be considered oppressive conduct:
Conduct which constituted genuine attempt to save the company; and
When conduct undertaken or subject to complaint, has the consent of the applicant.
Take-home message
Bearing in mind the test set by the High Court, it is important that before forming any opinion on whether conduct is or is not oppressive, to seek our legal advice so as to minimise your risk and cost, where possible.
For advice or assistance with all business law matters contact the Business Law Team at Aylward Game Solicitors today at 1800 217 217
With Slater + Gordon announcing the closure of their Conveyancing Works division, it is timely that Aylward Game Solicitors have launched their partnership with Nectar mortgage brokers to offer high quality, full service residential conveyancing at a discounted rate.
Clients who arrange their finance for the purchase of a home through Nectar and engage Aylward Game Solicitors to undertake their conveyancing will benefit from a reduced cost of conveyancing.
As a result of the partnership between Nectar and Aylward Game Solicitors, Aylward Game will apply the commission received from Nectar to reduce their standard professional fees for arranging the conveyancing on a residential property purchase – reducing your cost without compromising quality.
Conveyancing in Queensland is complex and is affected by at least 20 different pieces of State and Federal legislation, contract conditions, extensive case law and practice guidelines. Many things in a conveyance may not go as expected.
Here at Aylward game, we do not seek to be the lowest cost provider of conveyancing.
We are highly experienced in all conveyancing matters and are able to guide our clients through any issues that arise, helping our clients to avoid costly liability and compensation issues and to reduce the stress that they face as they journey through this potentially complex legal process.
All conveyancing work is performed by experienced solicitors under the daily supervision of our principal, Mark Game, a solicitor with over 30 years experience in all aspects of the property, both residential and commercial.
“The initial joy of a low price or cheap conveyancing is soon lost by the stress caused by not having an experienced guide at your side during one of life’s major transactions”
Save Points On Your Interest Rates, And Cash On Your Conveyancing Fee”
Don’t just go to one bank… go to them all with Nectar on their portal here.
Buying An Existing Property Or vacant land
Experience matters when progressing through the conveyancing process. We can guide you through the pitfalls with your simple and complex commercial and residential property conveyancing matters. We take the guesswork away by reviewing your contract to identify issues and key dates for example your cooling off period, building & pest inspections, finance, and hidden clauses. We can recommend and undertake advanced searches. Finally, we prepare you for settlement, including paying stamp duty, calculating settlement adjustments for rates and water rates, or body corporate fees.
Selling An Existing Property Or Vacant Land
Selling your property is stressful enough. Let us ease your burden by keeping you aware of the important responsibilities you have as a property seller. We will guide you through the sale process ensuring that you meet all statutory requirements and responding to queries from the buyer’s solicitor to generally make the process as smooth as possible. We prepare you for settlement, including calculating settlement adjustments for rates and water rates and, where applicable, body corporate fees and liaising with your real estate agent and the buyer’s solicitor to ensure a smooth settlement with funds banked to your account quickly following settlement.
Off The Plan Purchases
Buying “off the plan” has become increasingly popular but there are a number of factors additional to those in a standard purchase, particularly because the asset you are buying is not built yet! We will perform a review of the contract and disclosure documents to advise you on how to best protect yourself against the additional risks. We will work with you throughout the full buying process, performing initial searches, and further searches once your plan has registered. Finally, we work with you in the period from plan registration to settlement.
Non-Standard Conveyancing Contracts
Our conveyancing solicitors are highly experienced in advising you on these types of property and conveyancing contract matters. Whilst contacting us early is important for all such transactions it is paramount for these contracts. We have assisted thousands of clients on commercial contracts (involving Land and Sale of Business transactions), Vendor Finance/Instalment Contracts, Leases, and many more Queensland property transactions. We can also advise you on caveats, easements, and other encumbrances on a lot and the most effective means of dealing with these matters.
We have introduced this in the hopes of saving our clients money on their conveyancing without reducing the high standard of work we perform. This is full-service conveyancing with fees subsidised by the finance broker Nectar.
Mark Game, the partner responsible for property transactions at Aylward Game solicitors welcomed the new arrangement “It is vital to ensure that you appoint an experienced solicitor to look after your property purchase, and ensure that you avoid the many pitfalls that can trap the unwary or unprepared. We are delighted to be able to offer our quality conveyancing service in association with Nectar”.
This will help our clients to save some money without compromising on the quality of service.
This is the name of an article that appeared in The Australian’s Legal Affairs section on Friday 22 July 2016.
Every Barrister when they start out, at least for a fleeting moment, aspire to the exalted rank of Silk. They yearn for those post-nominals, QC (Queens Counsel). Like the armed forces have the SAS, the law has the QC.
Perhaps the ambition is so fierce that they dream of a legal textbook bearing their name, the QC post-nominal and authoritatively on the inside cover ‘One of Her Majesty’s Counsel Learned in Law & Equity’.
Then reality takes a bite. Those post-nominals demand an increase in fees that price the poor QC out of the market, and they find themselves less busy. Maybe they are not elite enough to be a QC (not every Rugby player can play for the Wallabies or the All Blacks). Maybe they just do not want the post-nominals (there are many ‘Junior’ barristers on far more money than QC’s with heavier and higher profile caseloads).
On application by any interested Barrister, it is generally up to the State Bar Council and the State Chief Justice as to whom trades their cotton robe for a ‘silk’ robe – hence the name Silk.
The successful ones, and the soon-to-be-successful one’s chortle amongst each other ‘How many times have you been to the High Court?’, ‘Who is your favourite IP Judge?’, or ‘does your name appear in the CLR?’
Apparently though they don’t say ‘How’s your mediation practice going?’ At least this is the case in so far as Sydney Barrister Mary Walker is concerned.
In Walker v New South Wales Bar Association[2016] FCA 799 the protocol for appointing Silk was challenged, unsuccessfully, by Ms Waker. Justice Besanko’s judgment describes her complaint:
This is an application by Ms Mary Walker for declarations and an order pursuant to s 233 of the Corporations Act 2001(Cth) against the New South Wales Bar Association (“the Association”), Ms Jane Needham SC and Mr Noel Hutley SC.
The applicant practises as a barrister predominantly in New South Wales and she is and has been a member of the Association since 20 May 1988. For some time prior to 2014, the applicant’s practice has been wholly or substantially comprised of the conduct of mediations, as a mediator. ..She is a member of the Outer Bar. …
In 2014 and again in 2015, the applicant applied for an appointment as Senior Counsel. On each occasion her application for Senior Counsel was unsuccessful. An unsuccessful applicant is not entitled to reasons for the refusal of his or her application. Under the Senior Counsel Protocol, an unsuccessful applicant may discuss their application with the President. The applicant exercised that option. As to her application in 2014, the applicant was told that her application was not considered because the Senior Counsel Selection Committee determined that it was not within the Protocol. As to her application in 2015, the applicant was told that her application was considered on its merits and that she did not have sufficient support. She was told that the Senior Counsel Selection Committee deferred consideration of the meaning of “practising advocate” (emphasis added) in the 2015 Senior Counsel Protocol.
KEY CRITERIA
The judgment goes on to state that key criteria for the selection of Silks are:
During this time it is expected (without being exhaustive) that the applicants’ practice will demonstrate some or all of the following: (i) experience in arguing cases on appeal; (ii) a position of leadership in a specialist jurisdiction; (iii) experience in conducting major cases in which the other party is represented by Senior Counsel; (iv) experience in conducting cases with a junior; (v) considerable practice in giving advice in specialist fields of law; (vi) experience and practice in alternative dispute resolution, including arbitrations and mediations; and (vii) experience in sitting on courts or tribunals.
Applying impious and simplifying hands to His Honour’s reasons it seems that only one of the enumerated heads goes to Mediation. Therefore, a successful applicant for Silk needs to be arguing cases on their hind legs in Courts (and Superior Courts at that).
Again, our summary can only be described as a chaotic deluge in a tempest of legal wisdom, Ms Walker was not arguing cases in Court and therefore was ‘knocked back’ for Silk on two occasions. (Ms Walker had appeared in the High Court before turning to mediation).
The point of The Australian article is that mediators are ‘an entrenched part of the civil litigation system, and encouraged by the Court’ to quote the Chief Justice of Victoria. Mediators bring about less expensive and timelier solutions and free up judges for hearing weightier and more difficult trials and appeals.
Also the point of The Australian article is that the best barristers may be dissuaded from becoming mediators if that presents as an obstacle to the prized virtue of Silk. Maybe, we are not sure if the former Chief Justice of NSW, Sir Laurence Street, now in his 90th year and Australia’s foremost mediator would agree.
This article briefly examines the circumstances where the fencing work costs may be borne by one neighbor only rather than being shared on a 50/50 basis. As with any other case, the list is not meant to be exhaustive and every case turns on its own facts.
Where is the dividing fence?
In order to determine the location of the dividing fence and whether that lies on the common boundary line between the two neighbors’, you need to engage a qualified cadastral surveyor. His/her job is to identify the exact location of the dividing fence in relation to the common boundary line.
Do I need to contribute towards the costs of rebuilding the dividing fence?
The short answer with a few exceptions is yes. Often when the fence is dividing the common boundary between you and your neighbor, the neighbor who seeks to replace or repair the fence requests a contribution from you for the costs of rebuilding/repairing the fence. It is not uncommon that in such circumstance, the costs be shared on a 50/50 basis between you and your neighbour. However, this may not always be the case.
What if we do not agree on the amount of each contribution?
Section 35 of Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 stipulates that, upon an application to Queensland Civil and Administrative Tribunal (QCAT), the QCAT may order, among other things, how the fencing work to be carried out, whether or not that line is on the common boundary of the adjoining land and the way in which contributions for the fencing work are to be apportioned or reapportioned.
Is a dividing fence a retaining wall?
No. A fence is not a retaining wall. This is because a retaining wall is defined as a structure that supports excavated or filled earth. QCAT has no jurisdiction to determine a dispute about a retaining wall per se. However, its order in relation to the fencing work can extend to the preparation of land along or on either side of the common boundary of adjoining lands for the purposes of the dividing fence. A likely example to explain this sort of order is that, where work on a retaining wall is necessary to carry out the fencing work.
What is the likely scenario where I do not need to contribute to the fencing work costs?
Consider a scenario of a pool owner who desires to carry out fencing work to alter or replace a special-purpose fence.
Take-home message
Preserving a good neighborly relationship is always recommended. Disputes can arise for a number of reasons; some could be due to a misunderstanding or an innocent miscommunication, and others can occur due to the lack of knowledge about someone’s rights and responsibilities. The best possible results are likely to be achieved when the door of communication between the neighbors’ remains open and the matter is not litigated. Address an issue now before the issue becomes an issue.
For advice or assistance with all fencing, retaining wall and neighborhood dispute matters contact the Property Law Team at Aylward Game Solicitors today on 1800 217 217
