Leaver v Taxi Combined Services

Leaver v Taxi Combined Services - [2002] TASSC 2 - TASSC 2002 case summary — Zoe

[44]

10 The applicants were their only witnesses. Mr Leaver's evidence was limited in its scope and of little assistance to me when resolving the principal issues. There were substantial conflicts between the evidence of Mr Newton on the one hand and the evidence of Messrs Smith, Deane, Caddy and Quinn, who gave evidence for the respondents, on the other hand. I found Mr Newton the least impressive of the witnesses and I preferred the evidence of the respondents' witnesses where there was a conflict. He was glib and obviously defensive, in much of his evidence. There were several occasions when I positively concluded that he was being untruthful. In particular I concluded that he was not being candid when he was being cross-examined about the circumstances which gave rise to an action for defamation brought against him (and not defended) by a magistrate, Mr Wilson, when he was being cross-examined about the accuracy of the incidents related by Mr Caddy and when he was being cross-examined about whether he wished to take over the company or play any part in running it in the future. The respondents' witnesses corroborated each other to a varying extent. Mr Smith impressed me as an honest and honourable man. He responded directly to questions. I had no reason to doubt the substance of what he said. Mr Caddy gave evidence of two incidents on consecutive days in September 1997. He attested to the facts in his affidavit sworn on 11 September 1998. However, by the time he came to give evidence in the witness box he confessed to having forgotten much of the detail of those incidents. As a result of cross-examination, during which his recollection was attacked, counsel for the respondents tendered a hand-written record Mr Caddy had made of the second of the incidents, a record which I accept as being accurate. He impressed me as a candid witness. When in the course of cross-examination he was challenged concerning evidence he had given that Mr Newton had abused him on a particular occasion, his response had a ring of truth about it. It was:

[69]

29 In imperative terms ("it must"), s1093 required the company, if it refused to register the transfers, to send to the transferee notice of the refusal within two months after the date on which the transfers were lodged with it. Counsel for the applicants relied upon the application of a similar statutory provision in re Swaledale Cleaners, Ltd [1968] 1 All ER 1132 and on appeal [1968] 3 All ER 619. In that case, transfers were lodged with a company on or before 3 August 1967. There were insufficient directors to formally deal with them. On 18 December 1967 an additional director was appointed to regularise the position and on a later date the board refused to register the transfers. The Companies Act 1948 (UK), s78(1), contained a provision almost identical to that of s1093. However, there was no equivalent of s1094. Pennycuick J, at first instance and on appeal from him, the Court of Appeal, considered a motion for an order pursuant to a statutory provision permitting rectification of the register of members of a company. Cf Corporations Law, s175(1) and Corporations Act 2001, s175(1). The Court of Appeal, and the learned judge at first instance, referred to the prima facie right of a shareholder to transfer his shares, (see re Bede Steam Shipping Company Ltd [1917] 1 Ch 123 and Wood v W & G Dean Pty Ltd [1929] HCA 44; (1929) 43 CLR 77) but noted cl 8 of the company's articles of association which empowered the directors "at any time in their absolute and uncontrolled discretion" to refuse to register a transfer of shares. Danckwerts LJ, at 623 referred to the clause as being harsh and expressed the view that "it seems to me that such an arbitrary and harsh right must be exercised within a reasonable time" and "the corollary that follows is that, if it is not exercised within a reasonable time, that right is gone". The learned judge at first instance at 1136, had expressed the view that the period of two months mentioned in s78(1) could "safely be taken as the outside limit after which there is unnecessary delay". Although that view was expressed in somewhat absolute terms, it was a decision made on the facts and in the circumstances of the case. A consideration of the judgments of the members of the Court of Appeal makes it clear that the Lords Justices regarded the limitation period of two months as indicating what was a reasonable time in the factual circumstances of the case they were considering. For example, Harman LJ at 622, said that the statutory provision of two months "quite clearly indicates that a reasonable time, other things being equal" [my emphasis] was that period of two months.

[110]

59 There was evidence, which I accept, about two incidents between Mr Newton and a Mr Phillip Caddy, which supported the view of the directors that Mr Newton was unlikely to abide by the rules of the company. Although initially it was the evidence of Mr Smith that the incidents in question had occurred on about 9 September 1996, the evidence of Mr Caddy satisfied me that they did not occur until after the meeting of 26 August 1997, on or about 9 and 10 September 1997. Nevertheless, I may take the incidents into account, if for no reason other than that the Court has a discretion whether or not to make orders in favour of the applicants, even if it is satisfied that the refusal to transfer the shares was without just cause. The first incident consisted of the following. TCS had a system of inspecting the taxis which used its services, to ensure that standards of presentation and cleanliness were adhered to by all drivers. Inspections were performed on a more or less random basis and the members of the company took it in turns to carry out the inspections at the request of company management. On the occasion in question, Mr Caddy had been instructed by the management to inspect vehicles and he wished to inspect car number 20 which was at the premises of TCS at 32 Cameron Street. Mr Newton was present and very abusive. He called Mr Caddy a "little fucking turd" and he repeatedly requested Mr Caddy to punch him. The incident occurred in the presence of about two other people. Because of Mr Newton's attitude, Mr Caddy felt intimidated and unable to carry out the inspection which the board had requested him to perform. On or about the following day at 32 Cameron Street, Mr Caddy, in the presence of Mr Quinn, attempted to inspect a vehicle managed by Mr Newton. Mr Newton told Mr Caddy that if he put his head inside the door he would "chop it off". Mr Caddy opened the door of the taxi and was about to look inside when Mr Newton kicked the door closed with considerable force. He then invited Mr Caddy to open the door and told him that if he did so and put his head inside he would chop his head off. Mr Caddy then told Mr Quinn that he could not inspect the vehicle because of Mr Newton's behaviour. During the incident Mr Newton verbally abused Mr Caddy, calling him such things as a "fucking cunt" and "fucking turd". He again invited Mr Caddy to punch him and said that if he did so he would "pulverise" him. He then attempted to incite two other persons employed by Mr Newton, Mr Henry Mace and Mr Shane Porter, who were present, to be violent towards Mr Caddy. Mr Caddy's allegations were made in an affidavit sworn by him on 11 September 1998. The applicants did not call evidence from Mr Mace or Mr Porter, disputing Mr Caddy's version of the incidents. I accept it. It was supported by the evidence of Mr Quinn.

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Judgment (117 paragraphs)

Leaver v Taxi Combined Services (Launceston) Pty Ltd [2002] TASSC 2 (30 January 2002)

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Legislation Cited (1)

Cases Cited (4)