In recent years, there has been a significant upward trend in the demand for service station businesses and fuel re-selling operations across New South Wales. This demand by investors has, amongst a host of reasons, been driven by attractive yields and long-term lease covenants.
However, those looking to invest in service station and fuel re-selling operations in New South Wales must not overlook the complex legal considerations involved in this niche and intricate area.
In addition to the usual considerations involved in the purchase of any business, there exist a number of matters which must be taken into account when investing in service stations or fuel re-selling businesses, including:
Environmental Site Assessment and Tank / Line Testing
Whilst landowners and lessors of service station sites are generally responsible for site contamination, lessees are usually required to remediate any contamination beyond that which existed at the commencement of a lease.
Given that there are significant costs associated which the remediation of contamination, an Environmental Site Assessment (‘ESA’) Report should be obtained prior to any acquisition to ascertain the extent of contamination (if any) in the soil and groundwater of a service station freehold. An ESA Report will not only provide a baseline for any future remediation but will also ensure investors are not forced to remediate contamination they have not themselves caused.
Whilst an ESA Report will indicate the extent of any contamination, it will not pinpoint a cause. As such, the integrity of the fuel tanks, pumps and lines at or under a service station site should also be investigated prior to any acquisition, either with a vendor directly or by obtaining an independent tank and line test.
Potential for development within proximity of the Business
Traffic flow, visibility and site accessibility are key components of the profitability of a service station business. Accordingly, investors should make enquiries with local council and particularly Roads and Maritime Services to ascertain whether there are any road or development proposals in the vicinity of a site which may affect these components and profitability as a result.
Notwithstanding that such enquiries may not reveal any proposals for development, careful consideration must be given to the terms and provisions of leases to protect investors against future developments and ensure adequate rent abatement rights are available.
Those looking to acquire a service station business or fuel re-selling operation should ensure the terms and provisions of any lease are carefully reviewed by a legal professional with a solid understanding of service station leases. A matter of particular significance for such businesses are the maintenance and repair responsibilities for above and below ground equipment and property, as this will include fuel tanks, pumps and lines and accordingly carry a heavy financial burden in terms of ongoing maintenance, upkeep and even replacement.
Some of the key operational considerations for service station and fuel re-selling operations include:
Branding / Supply / Fuel Re-Selling Agreements
In order to assist with competition, brand exposure, and know-how, many service station operators elect to enter into contractual arrangements with larger and notable independent and nationally branded oil companies as part of their business operations. Having the benefit of this brand exposure is intended to assist the operator with marketing of their business generally. However, as part of these contractual arrangements, careful consideration must be given to the terms and conditions of such branding / supply / fuel re-selling agreements, as often operators will be imposed with various key performance indicators, restraints in terms of trade as well as for supply of stock, as well as potentially royalty style payments dependent upon the oil company contracted with.
Licences and permits
In many cases, service station and fuel re-selling businesses do not operate in isolation, and it is not uncommon for a restaurant or café to run in conjunction with a fuel re-selling operation. As such, investors should make enquiries as to what, if any, licenses affect a business premises which is the subject of a proposed acquisition that will require transfer or assignment, such liquor, food, cigarette and dangerous goods licences.
Rostron Carlyle Rojas Lawyers are experts in service station and fuel re-selling transactions, including fuel re-selling franchise and commission agency arrangements. For further information or assistance in this regard, please contact Commercial and Property Partner James Hatzopoulos on (02) 9307 8900 or by email at firstname.lastname@example.org.
An Employer’s Liability as an accessory for misuse of confidential information by its own employees.
It is commonly the case that executives and senior managers seeking to jump ship from one employer to another either by themselves or through recruitment agents, actively promote themselves with promises that they can bring significant business with them thereby adding to their value and increasing their worth to a prospective employer.
The recent decision of Lifeplan Australia Friendly Society Limited v Ancient Order of Foresters in Victoria Friendly Society Limited  FCAFC 74 is a stark reminder of the risk to not just those employees who take and purport to misuse confidential information of former employers but also to the new employer.
In the Foresters decision, the court ordered that the new employer (Forester) should account for profits generated by business developed and managed by two former employees of Lifeplan.
The former employees of Lifeplan that joined Foresters in senior roles implemented business plans and drew clients away from their former employer. The court found that they did so whilst still employed by Lifeplan and had used and misused highly confidential information to do so.
On appeal, the court found that there was a causal relationship between the breach of the employee’s duties and the profits generated in their new employer. Further, the court found that Forrester’s as the second employer had knowingly acted upon the information, were implicated in the steps taken by the employees before jumping ship to join their company. As a consequence, the profits made by Forrester’s relied entirely upon the employees misusing the confidential information taken from their former employer and with the assistance and complacency of the new employer. Accordingly, the court ordered that Forrester’s pay damages in the sum of $6,200,000.00 representing profits made from the breaches of their employees against the former employer.
The court also discussed the provisions of section 79 of the Corporations Act 2001 (Cth) (“the Corporations Act”) which provides that a person may be involved in a contravention if and only if the person:
a) has aided, abetted, counselled or procured the contravention; or
b) has induced, whether by threats or promises or otherwise, the contravention; or
c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention; or
d) has conspired with others to effect the contravention.
The importance of this section lies in the fact that the former employees were claimed to have breached various provisions of the Corporations Act as officers of their former employer and they had been obliged in their capacity to exercise their powers and discharge their duties with a reasonable degree of care and diligence in good faith and in the best interests of the corporation and for proper purposes without improperly using their position to gain advantage or cause the corporation detriment and as officers they had obtained information that they were obliged not to use improperly or to gain advantage or to cause the corporation detriment. Those were civil penalty provisions of the Corporations Act section 180, 181, 182 and 183 and by section 79 of the Corporations Act, accessorial liability was established.
In fact, the court found that on the facts before it, “there was no doubt that the board of Forrester’s was actually aware, had actual knowledge, of the taking and using in breach of duty of confidential information. The board was not a passive observer of this; it did not prepare it but it used it in its decision-making process and after employing FPA in the governance process of checking performance. Likewise, Mr … knew of the clearly wrongful solicitations of funeral directors as the business venture was being agreed”. The court found that given the actual knowledge of the Forrester’s board in its participation of breached of the Corporations Act by the former employees, it would “not draw back from a conclusion that Forrester’s was knowingly concerned in those breaches”.
The decision is a stark and practical reminder of the risk in taking on new employees who promise to bring business and work from their former employer. Often, the promise of such new work proves irresistible to the new prospective employer, and the risks are either overlooked or ignored. The decision dealt with above clearly shows that the risk of damages are real.
If you have any queries in respect of these matters please do not hesitate to contact us for timely advice which may save expensive and troublesome litigation.
The recent decision of the Federal Court by the ACCC in its case against Servcorp a large serviced office provider is a timely reminder for all businesses to review their terms of trade and to remove any terms which may go beyond protection of legitimate business interests-especially in dealing with a smaller business interest. The consumer law as applies to unfair contracts was extended to cover B2B contracts in 2016.
The Court declared by consent that 12 terms in contracts used by Servcorp subsidiaries are unfair and therefore void.
The specific contract terms declared unfair included those:
- that had the effect of automatically renewing a customer’s contract;
- allowing Servcorp to increase the contract price;
- permitting Servcorp to unilaterally terminate contracts;
- unreasonably limiting Servcorp’s liability; and
- permitting Servcorp to keep a customer’s security deposit if a customer failed to request its return.
ACCC deputy chair Mick Keogh said “Businesses can no longer impose contract terms that create a significant power imbalance between parties, are not necessary to protect their legitimate interests, and which would cause significant financial detriment to a small business.”
“While penalties do not apply for unfair contract terms, the ACCC will continue to take matters to court to ensure these terms are declared void and protect businesses.”
Following the Court’s declaration, Servcorp was required to pay the ACCC’s costs and establish an unfair contract terms compliance program.
If you have any concerns about the fairness of any of the terms of any contract affecting your business interests, please contact us for advice.
The terms and conditions of a business are often the foundation of the agreement between a business and its customers for the provision of goods or services and in some instances may be the only documentary proof of the agreement.
Given the importance of the document, businesses must ensure that it is robust, accurate and up to date, particularly given the changes that have occurred to key pieces of legislation in recent years. A small investment in a review of terms and conditions can have a large return in the form of protecting the business’s rights and potentially recouping outstanding monies.
The commercial terms in such a document should be clear, including price, method of payment, delivery, and dimensions, plans and specifications. Beyond these fundamental commercial provisions, the terms and conditions should also include reference to the nature of a quotation and how such a quotation can be accepted. Even though acceptance at law may differ from the general meaning of acceptance, specifying in the terms and conditions the circumstances giving rise to acceptance will provide prima facie agreement by the parties as to when the contract is entered into. Similarly, the terms should cover the time of risk passing in goods supplied, and the granting of access to premises of the customer where services are to be provided at the customer’s location.
Many terms and conditions lack provisions that strengthen the business’s rights particularly in the instance of default of the purchaser. Notwithstanding the impact of the Personal Property Securities Act 2009 (Cth) (PPSA) (discussed below), it is useful for terms and conditions to contain a provision defining when title to goods passes and when it is retained by the supplier – again, this might be sufficient at first instance to provide protection to the supplier. Stronger protections can be found in charging clauses pursuant to which the supplier may take a mortgage over real or security interest over personal property of the customer. Such provisions should be coupled with a power of the supplier to appoint a receiver or receiver and manager in the event of default by the customer, under which the receiver has the power to do anything that either the customer or supplier can do, including to sell property of the customer to satisfy debts to the supplier. Suppliers should also seek to obtain a personal guarantee from a director of a corporate or trustee customer; this provides a strong disincentive for a customer to default as the guarantor will face the risk of bankruptcy should the debts of the customer not be paid. Another form of protection for a business, at least at first instance, is a clause under which the parties agree to limit the supplier’s liability and to define the manner in which defective goods or services are dealt with. While such clauses must expressly be subject to statutory warranties and guarantees (discussed below) they may generally serve as a first level of protection against potential claims by customers and can also expressly exclude liability for indirect or consequential loss and loss caused by the actions of the customer. The terms and conditions should also contain clauses relating to the circumstances under which the supplier is entitled to cease supply and when the agreement may be terminated so as to reduce or avoid uncertainty.
It can often be a commercial decision as to which of these protective provisions to include in terms and conditions as a supplier does not want to scare away potential customers. Alternatively, it may be the case that the provision is always included but the supplier’s actions can mitigate the effect of the provision. One example of this is the creation of a security interest under the PPSA and subsequent registration on the Personal Property Securities Register (PPSR). The elements required to give rise to a security interest that may be registered on the PPSR – attachment, the type of collateral used as security, whether the interest is a purchase money security interest (if applicable) – should always be expressed in the terms and conditions; however, a supplier may choose not to register the security interest on the PPSR to keep the customer onside. Strictly speaking, security interests should be registered on the PPSR within 20 business days of entry into the agreement in order to give the supplier protection should the customer go into liquidation within 6 months, so by not registering its security interest the supplier is risking the loss of its products or its right to claim priority over the personal property of the customer in the event of default. Unfortunately, this is a risk that a supplier who is just starting out and who has little bargaining power may be forced to take.
Certain types of clauses should not appear in terms and conditions due to the impact of legislation. Under the Australian Consumer Law (ACL), suppliers of goods and services are taken to give certain consumer guarantees that cannot be contracted out of, including guarantees as to:
- acceptable quality
- fitness for any disclosed purpose
- due care and skill
- reasonable time for supply
Not only will any provision in terms and conditions that purports to exclude, restrict or modify such guarantees be deemed void, the supplier will have committed an offence of having made a false or misleading representation in respect of the guarantee, exposing a corporate supplier to a pecuniary penalty of up to $1,100,000 and an individual supplier to a pecuniary penalty of up to $220,000. The supplier will be equally exposed if its terms and conditions contain a provision seeking to avoid all liability for defective or damaged goods, as the ACL provides for minimum thresholds for repair or replacement of goods and supplying services again.
Other types of clauses will be impacted by legislation regardless of what is written in the terms and conditions. For example, the ACL also provides that if a supplier uses a standard form consumer or small business contract which contains an unfair term, the term will be considered void. A business’s terms and conditions will usually be considered a standard form contract as they will be prepared in advance and not be subject to negotiation. The ACL provides examples of unfair terms, which include provisions that allow one party but not the other to:
- avoid or limit performance
- terminate the contract
- vary the terms of the contract
- vary the price without giving the other party the right to terminate
- renew or not renew the contract
- assign the contract
While potentially impractical, one means of avoiding the imposition of the unfair contracts regime is to allow customers the right to negotiate terms and conditions; another is to clearly notify the customer of which terms in the contract give unilateral rights to the supplier. A more practical approach, however, is to have the terms and conditions reviewed and updated to ensure that no such unfair terms exist.
Our experienced commercial lawyers can provide you with peace of mind by reviewing and updating your business’s terms and conditions. Please don’t hesitate to contact us.
In March 2018, the Australian Government announced a new visa scheme, the Global Talent Scheme Pilot, targeted at highly skilled global talent. The trial of this new visa scheme will commence on 1 July 2018 and last for 12 months.
The purpose of the Global Talent Scheme is to recognize global talent in high demand for the benefit of Australian workers and Australian businesses. It will allow eligible Australian businesses to sponsor highly skilled overseas applicants for up to 4 years on the existing Temporary Skill Shortage (TSS) Visa.
The scheme comes at a time of large cuts to the occupations available under Australia’s skilled migration program. It is a proposed solution to address skill shortages in Australia, particularly in the Innovation sector, where many evolving tech-based job positions do not fit in the strict occupation moulds of the current Skilled Occupation Lists.
The new visa scheme will involve two streams: the Established Business Stream and the Start-up Stream.
The Established Business Stream
This stream is available to Australian employers who are publicly listed or have an annual turnover of more than $4 million.
The Australian business will need to meet the following key requirements:
1. That their recruitment policy provides first preference to Australian workers;
2. That they have tried to find an Australian to fill the role;
3. That the position will have minimum annual earnings of $180,000; and
4. That the sponsorship will result in a skills transfer to Australian workers.
This stream will allow businesses to nominate up to 20 positions per year.
The Start-up Stream
The Start-up steam is aimed at newly-established companies in STEM-related fields (science, technology, engineering, and math).
The stream will require businesses to show the following:
1. That their recruitment policy provides first preference to Australian workers;
2. That they have tried to find an Australian to fill the role;
3. That the position will provide for the market salary rate for the position (at least $53,900);
4. That a ‘start-up authority’ has endorsed the business; and
5. That the sponsorship will result in a skills transfer to Australian workers.
Start-ups will be able to sponsor up to 5 positions per year.
There will also be other visa criteria related to the visa application, such as health and character checks.
Applicants under both streams will have access to a 4-year TSS visa, with a transitional pathway to permanent residence after 3 years, if the applicant is eligible.
The Global Talent Scheme Pilot initiative is a step toward a more innovative and skilled Australian workforce. However, the practicality of the requirements is yet to be tested. Whether the scheme will appropriately address skill shortage concerns is yet to be seen, but we expect further refinements will continue to be made once it commences.
Shanalee Hayer, Rostron Carlyle Rojas Lawyers
Rostron Carlyle Rojas Lawyers migration team can provide advice to Australian businesses in need of overseas skilled workers. Contact us for a consultation today:
Peter Kuek-Kong Lee, Special Counsel and Registered Migration Agent MARN 0427478
Anna Gunning-Stevenson, Lawyer and Registered Migration Agent MARN 1797244
(07) 3009 8444
In the recent decision of Central Highlands Regional Council v Geju Pty Ltd  QCA 38, the Queensland Court of Appeal considered whether a regional council could be liable in negligence to a buyer relying on an incorrect town planning certificate issued by the council but supplied to the buyer by a third party, namely, the seller’s real estate agent.
The case involved an appeal by Central Highlands Regional Council (“Council”) against a judgment requiring Council to pay the respondent, Geju Pty Ltd (“Geju”), the sum of $852,205.50 for loss sustained by Geju when it purchased vacant land in Capella in Central Queensland (“Lot 70”) in reliance upon a negligent misrepresentation in Council’s limited planning and development certificate (“Certificate”).
Facts of the case
In March 2007, the then owners of a lot of land, Ford Property, contracted to sell that lot to Mayfair Group. The lot was in the rural zone but Ford Property had applied to subdivide the lot and for a material change of use from rural to industrial which was approved in August 2007 with conditions. Lot 70 was created upon registration of the survey plan and the material change of use would lapse if the change of use did not occur within 4 years of the approval taking effect.
Ford Property sold Lot 70 to Mayfair Group in December 2007. On the same day, Mayfair Group’s solicitors wrote to Council stating that they acted for the buyer and requested for a limited planning and development certificate. The Certificate was issued to Mayfair Group’s solicitors which incorrectly stated that Lot 70 was in the industrial zone when it should have stated that it was in the rural zone. The Certificate also contained an incorrect lot description.
If the Certificate was accurate and Lot 70 was zoned industrial, there would be greater scope to reconfigure the land into smaller lots and the ability to use the land for industrial purposes would not be limited to the 4 year timeframe under the material change of use approval.
Mayfair Group sold Lot 70 to Geju in June 2008. During the sale process before the contract was entered into, the real estate agent provided the Certificate obtained by Mayfair Group to Geju. Finance was approved based on the incorrect zoning, the lot was worth significantly less than the purchase price on application of the correct zoning.
The main issue for the court to determine was whether Council owed a duty of care to Geju, the court noted that while it was foreseeable that the Certificate would be passed to a broader class of people, there was no evidence that Council knew that the Certificate would be passed on or that a person would buy Lot 70 relying on the information in the Certificate.
Under the statutory framework any person who suffers financial loss because of an error or omission in the certificate may claim reasonable compensation from Council. However, the claim the subject of the proceedings was not made under the statutory provisions but under the common law. The Court of Appeal also noted that Geju was not the requestor of the Certificate.
Geju was not the requestor of the Certificate, nor was it a member of a limited class of people that the Council should have known would likely receive, and rely on, the Certificate. There was insufficient evidence to conclude that the Council owed Geju a duty of care and the Court of Appeal set aside the judgement against Council.
In the course of a property transaction, this case demonstrates the importance for the buyer to obtain a planning and development certificate itself or by its advisors before the contract is entered into. In this case, Geju should not have relied on the Certificate provided by the seller and should have conducted its own due diligence. Further, if a buyer was going to rely on information given to it by the seller, then the relevant warranty about its accuracy should be included.
Please do not hesitate to contact us if you would like us to assist you with your legal due diligence in a property transaction or if you would like us to review the contract before it is entered into.
In late 2017, the Queensland Government enacted the Building Industry Fairness (Security of Payment) Act 2017 (“the BIF Act”). The BIF Act brings significant changes to the security of payment regime for the Queensland building and construction industry.
When starting a business many people simply register a business name and domain but fail to realise that this does not grant them the exclusive use of that name in Australia or protect any design they use in their business.
To obtain such protection you must register a trade mark with IP Australia. The four steps to registering a trade mark are:
- Conduct preliminary research and choose your trade mark
- Structure ownership and use of your trade mark
- Determine which class of goods and services apply to your trade mark
- Apply to register your trade mark
1. Conduct preliminary research, choose and design your trade mark
It is vital from the outset that you ensure the name or logo is chosen with a view to trade marking it. Often we find that businesses within an industry tend to use common names, descriptive words or identifiers which by themselves can adversely affect the ability of the business to trade mark its intellectual property. In deciding on a business name and logo we recommend that you:
- engage in preliminary research and conduct Google searches on similar businesses;
- Whois domain name searches to identify available urls; and
- Australian trade mark database searches,
- avoid using where possible common names used for the products or services you sell;
- descriptive words and phrases by themselves;
- geographical names;
- words which sound similar to another business;
- logos which are similar to other businesses;
- common phrases, acronyms, single letters, and numerals;
- common surnames;
- liaise with both your logo designers (if applicable) and lawyers to ensure that the logo and name you choose is unique and capable of distinguishing itself from your competitors.
Rostron Carlyle Rojas Lawyers can assist you in this process by advising you on the likelihood of potential names and logos being registered as a trade mark and whether there are any potential conflicting trade marks or issues.
2. Structure ownership and use of your trade mark
Just as important as choosing the right name and logo is structuring the ownership and use of your trade mark. Unless the person or entity named in the trade mark application as the owner is the entity which will ultimately use the trade mark, it is important to ensure that documentation is put in place providing the user with a legal right of use.
Recent case law has resulted in a trade mark owned by a director of a company being successfully opposed on the basis that whilst the trade mark was used by the company, the director as the owner did not use the trade mark. Importantly in that case there was no written licence agreement between the director and the company by which the company had a legal right of use of the trade mark, or even evidence of an intention on behalf of the director to enter into such an arrangement.
Rostron Carlyle Rojas generally advises having a trade mark and other valuable intellectual property owned by a separate holding company which then licenses that intellectual property for use by your trading entity or third parties, and is experienced in establishing and documenting such arrangements.
3. Determine which class of goods and services apply to your trade mark
The next step is to determine which class of goods or services apply to your trade mark. IP Australia uses a classification system which categorises goods and services into 45 different classes and it is important to note:
- you must actually use or intend to use the trade mark in relation to the goods and services you specify;
- IP Australia bases its fees on the number of classes claimed and these fees increase with every class you add;
- whilst a wide description of the goods and services offers greater protection a wide description also increases the risks of the trade mark conflicting with pre-existing trade marks or being challenged on the basis of non-use;
- whilst it is possible to narrow the description of the class of goods and services after a trade mark is registered it is not possible to widen that description; and
- careful drafting of the description of the class of goods and services can avoid potential conflicts with other trade marks, costly objections by third parties and increase the likelihood of a trade mark being registered.
4. Apply to Register Your Trade Mark
Once the above steps are completed the application for the trade mark can be lodged with IP Australia. Generally, your trade mark application will be examined within 3-4 months after which IP Australia will either issue an acceptance notice or an adverse report. If accepted, the trade mark will be advertised to allow third parties to view the trade mark application and make objections. If there are no objections the trade mark will be registered at the earliest 7 ½ months after the application for the trade mark was lodged. It is possible that during the application process IP Australia may issue an adverse report or a third party may oppose the trade mark application. In both cases it is important that professional advice is obtained to determine your options and to ensure that the relevant deadlines are met in a timely fashion.
Rostron Carlyle Rojas Lawyers have successfully dealt with many issues that have arisen during the trade mark application process and can advise you of your options going forward.
If you need advice or assistance in respect of trade marking or protecting your intellectual property please contact us.
 Pham Global Pty Ltd v Insight Clinical Imaging Pty Ltd  FCAFC 83.
In Asia Pacific Joint Mining Pty Ltd v Allways Resources Holdings Pty Ltd & Ors  QCA 48, a dispute had arisen between the shareholders of a company, Samgris Pty Ltd which was incorporated to undertake coal exploration in Queensland.
The minority shareholders in the company claimed that the affairs of the company had been conducted in a manner which was oppressive or unfairly prejudicial to, or unfairly discriminatory against, them as the minority and further or alternatively claimed that the company’s affairs had been conducted in a manner which was contrary to the interests of the members as a whole.
The relief sought was for an order for the winding up of the company under s461 of the Corporations Act 2001 (Cth), or, alternatively, that the majority shareholder purchase their shares at a price to be determined by the court once the court had decided that they should have that relief under s233 of the Corporations Act 2001 (Cth).
Here, the company was well and truly solvent. Its draft financial accounts for the year ended 31 December 2015 showed net assets of in excess of $18 million before having any regard to a disputed $33 million.
In the first instance, the trial judge (Bond J) held that the relationship between the appellant and the respondents, as the shareholders of the company should be characterised as a “quasi-partnership” or “a majority controlled business requiring mutual cooperation and a level of trust”. He found that the relationship between the parties had irretrievably broken down and that this had been caused by the majority shareholder’s conduct. He further held that the conduct had been oppressive and unfairly prejudicial to, or unfairly discriminatory against, the minority within the meaning of s232(e) and that the respondents had established an entitlement to a remedy also under s232(d) and ordered a winding up of the company.
He found that the company was a “quasi-partnership” and was:
“..not functioning, and cannot reasonably be expected in the future to, in the way intended and … There is no real prospect that the directors nominated by the two sides can work together sensibly to reach the necessary agreement to be able to conduct the company’s business in the future. In the circumstances of this case, in the absence of any other remedy, it would be just and equitable that Samgris should be wound up.”
In this instance, the majority shareholder appealed the decision of the trial judge, but the appeal was unanimously dismissed.
In this instance, the court of appeal also reflected that:
“the critical considerations are that not only would the valuation of the respondents’ shareholding be an extensive, expensive and time consuming process, but there is also a real uncertainty as to whether the appellant would be willing and able to pay the price which is ultimately determined.”
In the face of such uncertainty-the court could not impose a buy-out order, affirming the original decision to order a winding up.
This decision reaffirms the approach taken when a dispute between shareholders is to be characterised as a quasi- partnership and the appropriateness of a winding up order.
It further highlights that if a party involved in a shareholder dispute wishes a buy-out order to be made, then it needs to demonstrate not only the appropriate basis for such an order-but the financial capacity and willingness to meet such an order.
If you are involved in or wish to obtain advice on have any aspects of shareholder disputes, then please contact us.