Madgwicks has successfully represented its client in a long-running family dispute concerning the control of a company holding significant property assets. Led by Principal Catherine Ballantyne, the firm achieved success at every stage of the proceedings:

(a) the Supreme Court of Victoria;

(b) the Victorian Supreme Court of Appeal; and

(c) defeating a special leave application to the High Court.

The Court

The case dealt with the issue of who controlled a company which held very valuable property.

The question was whether the directors and shareholders listed on the ASIC search were the true directors and shareholders.

In finding in favour of the Plaintiffs, the Court discussed the following:

(a) the articles of association of the company provided that the company can only register a change in shares if:

• a proper instrument of transfer has been delivered to the company which has been executed by both the transferor and transferee; and
• the board of directors had approved the transfer of shares.

(b) if the shares had been transferred as a gift, all things necessary to effect the transfer had to have been done; and

(c) any share certificate issued should comply with the Corporations Act 2001 and registration of the shares had to be entered on the register of members.

Lessons

Many matters could avoid litigation if proper advice was sought when transactions were taking place to ensure that proper compliance is adhered to.

In this case, the advice was presumably not sought at the time because the transactions were not legitimate and did not reflect the intention of the parties at the time.

Litigation such as this is complicated and often turns on technical points. It is important to get the right advice early.

This case highlights the importance of seeking sound legal advice when dealing with company structures, share transfers, and valuable property holdings. Madgwicks’ expertise in complex disputes ensures clients are guided through even the most challenging of matters with precision and clarity.

For more information, or to discuss how Madgwicks can assist you, please contact Catherine Ballantyne, Principal on (03) 9242 4766 or catherine.ballantyne@madgwicks.com.au

The information provided in this article is general in nature and cannot be relied on as legal advice, nor does it create an engagement. Please contact one our lawyers listed above for advice about your specific situation.