Supreme Court of WA|2010-12-02|Before: Martin J

These proceedings stem from a Judgment given in CIV 2265/06 of his Honour Justice Simmonds and subsequent enforcement orders appointing the 4th defendant to secure, preserve and realise the only asset of any value in the 2nd judgment debtor being the Deceased Estate of Martin Paul Banning. The 1st defendant in these proceedings is executor of that estate.
The 4th defendant has not been able to secure and preserve the share pursuant to the Receiver Orders of this Honourable Court and the directors of the Banning Holdings Pty Ltd continue to dissipate the value of the Share as follows:

(a) Real property at 55 Benara Road, Caversham, was sold, albeit it in part satisfaction of the judgment sum and interest;

(b) Real property at 9 Lacey Street, Perth, has been sold however, I am unaware of the sale price;

(c) A fleet of vintage cars, some of which were subject to a Property (Seizure and Sale) Order dated 15 August 2008, are being sold by the directors ...

(d) I believe that all cash funds in the Company's bank account at ANZ bank have been withdrawn;

With the exception of 'a', all the above are contrary to the freezing orders of this Honourable Court. Of assets totalling $4,255,000 when my husband and I purchased the share, only one property at 215 Masters Road, Darling Downs remains having value of approximately $1,000,000.

46 In circumstances of the BH asset deterioration, as perceived by Mrs Frigger, it is difficult to comprehend the continued commerciality in the Friggers proceeding with an acquisition of the share in BH at a purchase price of $730,000 - whilst it is asserted at the same time that only a Darling Downs property with a value of approximately $1 million, remains the main asset of BH.

47 Having identified those pervasive factors, I turn to consider further aspects of the parties' individual positions.

The Friggers' opposition to a stay of their proceedings

48 The plaintiffs' position through counsel was that they wished to proceed to a trial of an action seeking enforcement orders against the director defendants to compel full registration of the transfer to them from the Receiver as regards the share in BH.

49 Reliance was placed upon one of many affidavits sworn in the action by Mrs Frigger. Her affidavit sworn 10 August 2010 attaches contract of sale documentation with the Receiver.

50 The Friggers also rely upon written submissions prepared by their solicitor, Dutton Legal, bearing date 2 August 2010, but which were not for some reason filed. They were handed up by counsel during his argument on 10 September 2010. Counsel for the plaintiffs also relied upon a prepared chronology of the same date.

51 During argument I asked counsel for the plaintiffs to confirm that the Friggers were still willing to proceed with their acquisition of one share in BH and pay the outstanding balance of the purchase price ($710,000) to the Receiver.

52 Mr and Mrs Frigger were present in court sitting behind counsel at the time I requested this clarification. It was apparent that affirmative instructions to counsel were forthcoming, confirming a preparedness to render that outstanding balance payment in full, as their counsel then advised. However, I hold deep concerns about the substance of bare assurances from the Friggers, bearing in mind what Mrs Frigger has sworn in an earlier affidavit of 18 August 2009 (to which I earlier referred at [45] herein). To that can be added what was said by the Receiver in an affidavit sworn in the Primary Action on 5 October 2009 (attached as annexure 5 to Mr Eastwood's affidavit, sworn and filed in these proceedings on 14 October 2009). At par 27 of that affidavit the Receiver said, in the context of his lien over the BH share, securing his remuneration and costs:

The lien over the share only has value if I (or another seller, selling subject to my lien) am able to secure a sale price of substance and the sale completes. For reasons already ventilated before this court, I am concerned that the value of the share in Banning Holdings is declining. Mrs Frigger has already informed me that it is highly likely she would request a variation to the purchase price under the Contract to take into account the current valuation of the share before completing under the Contract. I am left in a state of complete uncertainty as to whether my lien is now of any real value or will remain of any real value.

(I also refer to par 32 of the affidavit of the Receiver.)

53 It was apparent at the September 2010 hearing, that a clarified position of the Friggers as to an unqualified rendering of the full outstanding amount of $710,000, given through counsel, came as something of a surprise at the time to counsel for the Receiver.

54 Were this matter to proceed further, I think that it would be wholly appropriate before any trial, for the Friggers to secure to the court and the Receiver's satisfaction, payment of the full balance of the outstanding purchase price. But the anterior issue as to asserted abuse of process, must first be resolved.

55 From the pleadings in the action, as well as from Mrs Frigger's affidavits, it is clear that the plaintiffs assert that they were promised by the Receiver (under the contract of sale for the share in BH) more than simply a delivery to them of an executed transfer by the Receiver, in respect of his one BH share. By par 11.2 of the plaintiffs' reply and defence to counterclaim filed 17 August 2009, the Friggers contend for this implied term in the contract of sale with the Receiver:

As to paragraph 11(b) of the Defence and Counterclaim the Plaintiffs say that it was an implied term of the contract that upon payment the Share would be registered in the Plaintiffs' names to enable the Plaintiffs to exercise their rights as registered shareholders and the 1st and 2nd defendant have frustrated the sale by refusing to register the Share in the Plaintiffs' names and the parties to the contract have verbally agreed that settlement be deferred until that issue is resolved.

56 The Friggers' position as to existence of an implied term as to their ultimate registration as BH shareholder, almost accords with the pleaded position of the Receiver, as expressed under par 8(e) of his defence. The Receiver there identifies an express (not implied) term of his share sale contract with the Friggers to the effect that 'the share was to be registered in the names of the Plaintiffs'.

57 The Receiver on his pleadings then, essentially accepts the Friggers' premise that more was required of him than merely his handing over an executed transfer of his one BH share to the Friggers. He accepts, in effect, that the Friggers were promised the end result of registration, in other words, the enjoyment of all shareholder rights associated with ownership of the acquired share. But this outcome has not been able to be achieved. And given Article 22, it is most questionable as a matter of law whether the Receiver, absent the assent of the BT board, could have got himself to a position of being able to fully perform this promise to the Friggers.

58 At par 17 of their reamended statement of claim, the Friggers contend that the BH directors' refusal to register the Receiver's transfer to them, is without just cause. They seek relief pursuant to s 1071F(2)(a) of the Corporations Act, asking that the court order that the Receivers transfer be processed and registered by the board of BH. But relief in that respect lies in the court's discretion, by use of the word 'may' in s 1071F(2), as well as under an alternative for the court under s 1071F(2)(b), to make such other order as the court thinks just and reasonable. Compulsive orders in the nature of a mandatory final injunctive relief against the BH directors, directed at the same end outcome of registration, are also sought. Again however, injunctive relief is equitable and ultimately lies in the discretion of the court.

59 Whether the directors of BH are now acting without just cause in refusing, and continuing to refuse, to register the Receiver's transfer, raises issues of some legal and factual complexity, particularly, by reason of Article 22. The plaintiffs refer to observations of the Court of Appeal in Smolarek v Liwszyc [2006] WASCA 50; (2006) 32 WAR 101 [68], as to the power of directors to reject a transfer, needing to be exercised for a proper purpose, as well as bona fide in the company's best interests. So much is to be accepted. But the plaintiffs' written submissions also recognise (par 21) that in deciding whether or not to register a share transfer, directors of a proprietary corporation can properly have regard to a range of potentially relevant factors. These include the perceived effects of a change on control of the company's administration, the perceived effect of a transfer upon the business of the corporation, possible adverse effects upon the reputation of the corporation, and even that the proposed transferee is a stranger.

60 The plaintiffs' written submissions accept, as they must, that the onus of establishing that the BH directors lack just cause would rest upon them, as the party seeking to establish its absence: see Leaver [7].

61 As to evidentiary onus, I note the force of observations made by Brereton J in Beck v Tuckey Pty Ltd [2007] NSWSC 1065 [9]. Significantly, the plaintiffs' written submissions at par 22 cite as an example of just cause being shown, a director's refusal to process a transfer, the situation where:

21.2 There was a confrontational and antagonistic attitude between the parties ...

The applicants have not established that the refusal of the directors to approve the transfers to Mr Newton was without just cause. To the contrary, I am satisfied that the decision was made in good faith and in the interests of the company. Mr Newton had proved to be exceedingly aggressive and abrasive, and disruptive to the orderly and good management of the affairs of TCS. I accept virtually all the evidence presented by the respondents. As a director, Mr Deane had good reason to conclude that Mr Newton was not a fit person to be a shareholder of the company which, as I have said, was in the nature of a cooperative, and that he had not been working in the best interests of the company and its shareholders. Mr Smith had good reason for his views that Mr Newton had, on a great number of occasions, engaged in aggressive, disruptive and undesirable behaviour towards the company and its officers and agents, and had attempted to undermine confidence between the board and its shareholders. It was Mr Smith's evidence, which I accept, that in general the board considered that there had been a breakdown in trust and confidence between TCS and Mr Newton, and that it was undesirable and contrary to the best interests of the company that he should be a shareholder.

62 In Australian Metropolitan Life Assurance Co Ltd v Ure [1923] HCA 29; (1923) 33 CLR 199 Isaacs J said:

[A]nd then the disruption of the directorate, a want of harmonious cooperation, and possibly a general prejudicial effect on the Company as a whole (221).

63 Everything I have observed in the Friggers' materials and from Mrs Frigger in particular, when appearing before me in person in the CMC List, leads me to conclude without a shadow of doubt that the Friggers accession to a position of equal co-shareholders in BH, would deliver a situation of volatility to the floor of a shareholders general meeting of BH.

The first, second and third defendants' position as regards a stay of this action

64 The position expressed in written submissions, as well as under a minute of orders (both filed 6 August 2010) on behalf of the first, second and third defendants, seeks a stay of the proceedings, on a permanent basis. The Banning defendants contend as well that the Friggers pleadings, or at least substantial portions of them, should be struck out as an abuse of process. They also seek that provision be made in respect of their interlocutory costs in respect of a number of applications.

65 The defendants' expressed position also would appear to be that upon a stay, they are willing to dismiss or discontinue their present counterclaims - brought against the Friggers, as well as against the Receiver (see defence and counterclaim of the first, second and third defendants, filed 1 July 2009).

66 The defendants cite well known case authorities in support of the court's inherent power to prevent an abuse of its processes, reiterating that the classes of cases in which the power may be used is not exhaustive, see Jeffrey and Katauskas v SST Consulting; Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529, 536; TK, PB & LS v Australian Red Cross Society (1989) 1 WAR 335, 340. As to the court's inherent power to stay proceedings where it is just and reasonable to do so, including by permanent stay, if necessary, see Wentworth v Attorney-General (NSW) [1984] HCA 70; (1984) 154 CLR 518, 526 (and s 16(1)(d)(i) of the Supreme Court Act 1935 (WA)).

67 The defence and counterclaim of the Banning defendants against the Friggers, raises numerous factual matters in contention (that it would be necessary to resolve at a trial) - in resisting registration of the Receiver's transfer of one share in BH to the Friggers, under the Receiver's contract of sale of March 2009. Matters raised by the Banning defendants include, the Receiver's asserted failure to fully comply with pre-emptive right provision, entrenched for the benefit of existing shareholders by Article 22A, unconscionable conduct on the part of the plaintiffs (including by the making of threats at a creditors' meeting as I mentioned) and ultimately a discretionary entitlement of the BH directors by Article 22, to refuse registration of a transfer to the Friggers, in an exercise of the directors' powers.

68 By counterclaim against the Receiver the Banning defendants (see pars 20 - 29 of the counterclaim) also pursue claims in alleged negligence, as well as asserted unconscionable conduct, and a compensation claim under terms of a written undertaking said to have been given in the Primary Action.

69 Counsel for the Banning director defendants emphasised an asserted inconsistency in the position of the Friggers - over whether or not they remained truly amenable to rendering full payment of the balance of the purchase price agreed with the Receiver for the BH share ($710,000). The statement in the Receiver's affidavit, to which I have already referred, as to the Friggers seeking abatement in the purchase price, was mentioned. Reliance was also placed upon a statement said to have been made in open court before me by Mrs Frigger (whilst acting without legal representation) on 15 October 2009 at a directions hearing. The statement was to the effect that the Friggers had no intention of rendering payment to the Receiver of the full purchase price for the share in BH and intended to ask the court to make orders for abatement of the purchase price, and with Mrs Frigger at the time citing reliance upon a decision, Monzu v Central City Ltd [2007] WASC 60.

70 I have obtained the transcript of that directions hearing. This is what was said (ts 19 - 20):

You are standing before me as I understand it saying that you are ready, willing and able with your husband to pay $730,000 for the share today.

FRIGGER, MS: Yes, on the condition that we get the share in the same state it was in when we bought it on 10 March. On 10 March - - -

KENNETH MARTIN J: That is not what you say in your pleading. You say you are ready, willing and able to purchase now.

FRIGGER, MS: Yes.

KENNETH MARTIN J: For $730,000, no strings attached.

FRIGGER, MS: Your Honour, I would just like to refer you to a case because this question came up the other day in the court in regards to asking for an abatement in the purchase price. I mean, we haven't officially asked for an abatement in the purchase price. We may do. We don't know yet.

KENNETH MARTIN J: Sorry? You may do?

FRIGGER, MS: We may do, yes. I have got a case here where Blaxell J said that is quite on the cards. It is Christine Monzu v Central City Ltd. At paragraph 39 the - - -

STEPHENSON, MR: Can you give us the reference to that please?

FRIGGER, MS: The reference is (2007) WASC 60. It says:

'It is significant that the plaintiffs at all material times have been ready, willing and able to settle the purchase price, subject to an appropriate abatement in the purchase price to reflect the reduction in size of lot 50' -

which is a piece of real estate that they were purchasing.

Given the nature of the detriment that has occurred to lot 50 since the date of the contract of sale, the plaintiffs are arguably entitled to take this stance.

We may be ready, willing and able to buy the share but at the time when it is registered we may ask for an abatement because the value has dropped considerably.

71 By reference to the asserted inconsistency in position as between paying the full purchase price and an abated price as stated by Mrs Frigger, it was submitted by the Banning director defendants, that the Friggers continuation of this action was a 'device for other purposes than those stated in the re-amended statement of claim' (ts 15).

72 As I indicated, the BH director defendants otherwise appear (see pars 10 - 12 of their minute of orders sought filed 6 August 2010) amenable to having their counterclaims in this action dismissed (on terms as to costs), in the event that the plaintiffs' action was to be permanently stayed as an abuse of process.

73 The Receiver filed a defence to the plaintiffs' claims on 23 July 2009. The Receiver also filed a defence to the counterclaim brought against him by the first, second and third defendants on 29 July 2009.

74 Under par 8 of his defence to the Friggers, the Receiver identifies five express terms in the share sale contract of March 2009 with the Friggers. I have already mentioned the importance of express term 8(e).

75 The Receiver's defence to the Friggers (par 11) is that by reason of a continued refusal of the BH directors to register his transfer of the BH share, that they have not been able to become registered holders of that share by 31 March 2009, in accordance with the terms of the share sale contract (see the express term pleaded in par 8(c) of the defence). Under the contract of sale, the balance of purchase price of $710,000 was payable on or before 31 March 2009. In fact, it was at the time paid in full by the Friggers. Subsequently, however, the Receiver on advice, refunded to the Friggers, $710,000, he retaining only $20,000, as a deposit.

76 Paragraph 12 of the Receiver's defence pleads that the terms of the share sale contract were impliedly varied by conduct, whereby:

(a) The Fourth Defendant continues to hold the deposit of $20,000 in his trust account and the Plaintiffs have not requested the return of their deposit.

(b) The Fourth Defendant refunded the $710,000 to the Plaintiffs pending the determination of an application by them to the court to compel the First and Second Defendants to register the Share transfer.

(c) The Plaintiffs have commenced these proceedings to determine whether they are entitled to be registered as owners of the Share.

(d) Neither party has given notice of default or notice of termination to the other.

77 Essentially then, the Receiver under his defence, as I observed earlier, accepts the Friggers' core premise, namely that there needed to be more than simply the Receiver handing over an executed transfer of the BH share then registered in his name. The Receiver accepts that his share sale contract with the Friggers envisaged by a term, that the Friggers would actually become registered as a shareholder in BH in their own names (see the express term at par 8(e) of the Receiver's defence). That has not occurred since March 2009.

78 The Receiver's defence (par 13) pleads that by variation of the contract of sale with the Friggers, settlement date for his receipt of the unpaid $710,000 has been deferred, until the plaintiffs obtain an order of the court compelling the defendant directors to register the share transfer. This is formulated under par 13 of the defence of the Receiver to the Friggers, in terms:

(a) if the Plaintiffs are successful in obtaining such an order, then they will be required to repay the balance of the purchase price of $710,000 to the Fourth Defendant in order to obtain registered ownership of the Share; or

(b) if the Plaintiffs are unsuccessful in obtaining such an order, then the Share Sale Contract will be frustrated or otherwise at an end and the Fourth Defendant will be required to refund the $20,000 deposit to the Plaintiffs.

79 The Receiver's position is that he has done all things required of him as regards the Friggers capable of being done by him, in terms of his facilitating the completion of the BH share sale contract, absent a compulsive order made against the BH director defendants compelling registration of the Friggers as owners of the transferred share in BH from him.

80 The Receiver also accepts that the Friggers are not yet obliged to complete on the sale by paying the outstanding balance of $710,000 to him - until there has at least been an order of the court compelling the director defendants to process the Receiver's transfer. (That plea is slightly out of harmony with the Receiver's earlier plea of an express term in par 8(e), that requires the Friggers actually be registered in respect of this one share in BH). There is a distinction of course, as between a court making orders to an end effect and the actual event actually coming to its fruition - with the distinction bearing upon when the outstanding balance of $710,000 would be paid to the Receiver by the Friggers.

81 The Receiver's defence to the counterclaim brought against him by the Banning defendants of 29 July 2009, asserts a complete absence of any wrong doing on his part. The Receiver says that he did meet all pre-emptive right requirements in respect of the existing BH shareholder (Mrs Banning) arising under Article 22A (see par 10 of the fourth defendant's defence to the counterclaim of the defendants).

82 However, the written submissions of the Receiver (filed 10 August 2010) take matters somewhat further than the pleading - no doubt in light of the demonstrable inertia - as regards completion on his share sale contract with the Friggers, which subsisted for 18 months from March 2009 to September 2010.

83 By written submissions the Receiver reiterates that he does not take an active role in this action. The Receiver submits that he does not oppose a stay, albeit pointing to a potentially unsatisfactory position arising regarding an unperfected contract of sale of the share in BH to the Friggers.

84 Paragraph 11 of the Receiver's written submissions then acknowledges:

The Receiver accepts it is highly unlikely the directors would be compelled to register the transfer because of the apparent ongoing animosity between the plaintiffs and the Banning Defendants.

That submission, in my assessment, both accurately and properly, accepts what is now an overwhelming reality of stalemate - by reason of the BH directors' ultimately controlling veto position under Article 22 of the articles of association of BH, especially seen in the face of the evidently hostile relationship as between the Banning directors and the Friggers.

85 The Receiver also acknowledges (par 2 written submissions):

In light of the successful appeal with respect to the quantum of damages payable by the defendants in CIV 2265 of 2006, the object of the Receiver's appointment has been satisfied and there is no requirement for his appointment to continue. However, the issue with respect to the share sale contract must be finalised.

86 On the issue of a stay of these proceedings, the Receiver (par 15 of the written submissions) says:

In this case, if the action is stayed or dismissed, in light of the variation ... the Receiver does not require the plaintiffs to complete and the proper course is that the Contract be formally annulled.

The Receiver seeks no relief in these proceedings and takes no position as to whether the directors should be obliged to accept registration of the transfer: that is a matter for the Court. At the same time, he acknowledges that as a result of the relevant appeal, there is no longer any question that the judgment debt has been satisfied and that the object of his original appointment has been satisfied.

88 The Receiver was of course removed on 10 November 2010, as I mentioned.

89 Had the Receiver, whilst an unsatisfied judgment debt was owed to CAT, entered an unconditional arms length contract of sale for the BH share, policy considerations going towards recognising a purchaser party's acquired property rights and assisting completion, by implementation of the Receiver's share transfer, would be powerful.

90 However, here the Receiver's contract was not with a third party at arms length. The Receiver's sale contract was entered with the Friggers - who have an inseparable linkage to the judgment creditor in the Primary Action, CAT. The CAT judgment debt no longer subsists, in the wake of the decision of the Court of Appeal in October 2009, along with the earlier payment of some indebtedness by the defendants under the initial judgment.

91 An extinction of the judgment debt in the Primary Action, is a strong consideration against the court making discretionary enforcement orders against the director defendants, more particularly so, where the Friggers in seeking that assistance are, for all intents and purposes, to be equated to the position of CAT - the former judgment creditor in the Primary Action and, now, in liquidation.

92 Ever more significant to my final conclusion is the intrusion into the share sale transfer arrangements of Article 22. That Article allows the directors to exercise a (qualified) right of veto against registration of a proposed transferee, in this case the Friggers.

93 The Article 22 directors' power must of course be exercised for a proper purpose. But it is prima facie relevant for the BH directors to recognise that a judgment debt, once owed to CAT at the time of the appointment of the Receiver in March 2009, no longer subsists. They may also legitimately consider that a completed transfer of the share in BH by the Receiver under a contract of sale with the Friggers, is a dealing that introduces new shareholder parties as 50% shareholders and introduces shareholders against whom there exist demonstrable levels of ongoing animosity - conceived in almost four years of hostile litigation. There are only two issued shares in BH. The other share is held by Mrs Sandra Banning. The prospect of looming antipathy and disruption to BH as between hostile 50% shareholders looms large. That looming discord is proper basis for the directors to legitimately decline to process a share transfer by the Receiver to the Friggers.

94 I am alive to the fact that the Banning defendants' solicitors communication of 23 March 2009 advised of the directors' decision to refuse to process the transfer. It then put reliance on the Receiver's failure to observe pre-emptive rights provisions within Article 22A in favour of Mrs Sandra Banning (that factual issue, of course, remains hotly contested in the present proceedings). However, the communication went further, to maintain assertions previously made by the defendants including as to purchase of the share in bad faith, at a gross undervalue and as a result of an improper arrangement with the Receiver. The letter of 23 March 2009 does not, in my assessment, confine the BH directors, in continuing to decline to process the transfer, to reliance just to issues raised in the correspondence of March 2009.

95 The consequence is that the issue as to likely hostility between shareholders being live is another relevant, seemingly overwhelming platform, for the Banning directors to refuse to process the transfer, see Crawford J's observations in Leaver [43] - [47] (particularly at [46] - [47]).

96 Yet another significant consideration is that the Receiver, an officer of the court, (properly and realistically) accepts (in the context of the ramifications of Article 22 and the absence of a subsisting judgment debt now due to CAT in the Primary Action) the force of a seemingly insurmountable obstacle raised by the Banning director defendants' refusal to process the share transfer.

97 The Receiver's sale of his share in BH in March 2009 to the Friggers, was conceived in a very different underlying factual environment. There was then a subsisting judgment debt to CAT. That is no longer so. The Receiver was removed on 10 November 2010.

98 In all the circumstances where, even if an Article 22 'road block' could be avoided, the court is asked to exercise a discretion to compel the BH director defendants to process the transfer, the sheer pointlessness in such orders, if the Receiver, having collected $730,000 would then be required to return the realised funds to the former judgment debtor (the Estate) - in the absence of a subsisting judgment debt - looms as an overwhelming consideration against the exercise of discretion.

99 A side issue concerning the Receiver's lien, over the BH share in respect of unmet costs and remuneration to date, remains. But that unresolved issue simply means that the Receiver may remain as registered owner of the BH share - until the basis for his lien is removed. It is inappropriate, in my assessment, that this side issue concerning costs and remuneration be allowed to deflect attention away from the predominant considerations at issue between these parties. Injection of the Receiver's lien into the equation, is something of a diverting consideration, in my view.

100 There subsists something of a 'Mexican standoff' now, as a result of the Receiver's lien, particularly bearing in mind the Receiver (unlike the Friggers) has managed to become registered proprietor of the one (50%) share in BH. Prima facie, he is entitled to maintain that position until all monies properly secured by his lien are paid. The circumstances in which the Receiver's lien may be discharged are matters to be resolved as between the first, second and third defendants directly with the Receiver.

101 The Receiver would also like to receive some clarification by orders of the as to the status of his uncompleted contract of sale with the Friggers. But for that to occur, the Receiver first needs to amend his pleadings against the Friggers to add a counterclaim seeking a declaration as to the legal frustration in law of the contract of sale.

102 On the face of it, given the Friggers contend that there is an implied term that they were to become registered as a shareholder in BH, with the Receiver contending that there was an express term in the sale arrangements to like effect - a continued and likely future non-fulfilment of the critical envisaged sale completion event, in terms of the Friggers' registration as shareholders in BH for over 20 months now (March 2009 to November 2010) - does likely present as an event of frustration impacting against the performance of the contract of sale. That issue, however, is a matter for final resolution for another day, on different pleadings.

103 In all the circumstances then, bearing in mind that I am not making final determinations of fact, but simply resolving the application to permanently stay the proceedings, my view is that a likely need to return the funds raised through sale of the BH share by the Receiver to the Friggers to the former judgment debtor (the Estate), presents as a scenario of such futility that it demands a permanent stay of this 'spin off' action.

104 The pointlessness scenario provides, prima facie, a basis for the BH's directors to continue to decline to process the Receiver's transfer of the share in BH to the Friggers - based upon power in the directors to reject a transfer under Article 22. Considerations of pointlessness and looming 50/50 shareholder hostility towards the intended transferee shareholders, are overwhelming considerations towards a permanent stay of proceedings. Absent a subsisting judgment debt to be recovered by a Receiver (who is now removed), there is no sufficient underlying rationale in principle to support enforcement orders against the directors of BH compelling the registration of a share transfer to the Friggers. More particularly, that is so when the sale is not a disposition to an arms length third party, but rather to parties inseparably associated with the (former) judgment creditor, CAT.

105 Had I not ordered a permanent stay of proceedings I would, in any event, still have required the Friggers to provide a bank guarantee to the Receiver for the outstanding purchase price in the amount of $710,000 - before considering allowing the action to proceed further, were it not permanently stayed on the basis of the considerations which I have discussed.

106 The parties should submit draft orders for a permanent stay of the action, after having had an opportunity to consider these reasons.

Judgments Enforcement Act 2004

FRIGGER -v- CAMPBELL-SMITH [2010] WASC 353 (2 December 2010)

Australian Metropolitan Life Assurance Co Ltd v Ure [1923] HCA 29; (1923) 33 CLR 199

Beck v Tuckey Pty Ltd [2007] NSWSC 1065

Computer Accounting & Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [2010] WASCA 171

Computer Accounting And Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 2] [2010] WASC 318

Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133

Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529

Jeffrey and Katauskas v SST Consulting [2009] HCA 43; (2009) 239 CLR 75

Leaver v Taxi Combined Services (Launceston) Pty Ltd [2002] TASSC 2; (2002) 10 Tas R 362

Monzu v Central City Ltd [2007] WASC 60

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183

Smolarek v Liwszyc [2006] WASCA 50; (2006) 32 WAR 101

Wentworth v Attorney-General (NSW) [1984] HCA 70; (1984) 154 CLR 518

FRIGGER -v- CAMPBELL-SMITH [2010] WASC 353 (2 December 2010)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (84 paragraphs)

Legislation Cited (2)

Cases Cited (21)

FRIGGER -v- CAMPBELL-SMITH [2010] WASC 353 (2 December 2010)