Vanis Capital Investments Pty Ltd (as trustee of the Vanis Capital Investment Trust) v Morris

• Jurisdiction: Australia Federal only
• Judgment Date: 20 April 2023
• Neutral Citation: [2023] FCA 359
• Date: 20 April 2023
• Court: Federal Court

Federal Court of Australia

Vanis Capital Investments Pty Ltd (as trustee of the Vanis Capital Investment Trust) v Morris [2023] FCA 359

File number:	VID 233 of 2023
Judgment of:	ANDERSON J
Date of judgment:	20 April 2023
Catchwords:	CORPORATIONS — Oppression — Application by Applicants for interlocutory relief that is tantamount to final relief — Where Court cannot be positively satisfied of standing of shareholders in company to bring claims — Where Court cannot be positively satisfied that First Respondent’s conduct is oppressive — Application refused. ; PRACTICE AND PROCEDURE — Application by First Respondent for transfer of proceeding to Federal Circuit and Family Court (Division 1) – Where claims in the proceeding before the Federal Court of Australia arise in the context of a broader family dispute between the First Respondent and the Fourth Respondent – Application refused. ; PRACTICE AND PROCEDURE — Application by Applicants to restrain First Respondent’s application in proceeding before the Federal Circuit and Family Court (Division 1) – Application refused.
Legislation:	Corporations Act 2001 (Cth) Jurisdiction of Courts (Cross-Vesting Act) 1987 (Cth)
Cases cited:	Hylepin Pty Ltd v Doshay Pty Ltd [2021] FCAFC 201 Martin & Pleasance Pty Ltd v A Nelson & Co Ltd [2021] FCAFC 80 Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; FCAFC 156 Sandy v Yindjibarndi Aboriginal Corp RNTBC (No 4) (2018) 126 ACSR 370 Ubertini v Saeco International Group Spa (No 4) (2014) 98 ACSR 138 Valceski v Valceski (2007) 70 NSWLR 36 Yara Pilbara Fertilisers Pty Ltd v Oswal (No 8) [2015] FCA 49
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	84
Date of hearing:	19 April 2023
Counsel for the Applicants:	Mr C Archibald KC and Mr D Matta
Solicitor for the Applicants:	Arnold Bloch Leibler
Counsel for the First Respondent	Mr H Austin KC and Ms N Papaleo
Solicitor for the First Respondent	Lander & Rogers
Counsel for the Second Respondent	The Second Respondent did not appear
Solicitor for the Third Respondent	Mr A Vijaykumar of KCL Law
Counsel for the Fourth Respondent	Mr R Heath KC and Ms M Hardinge
Solicitor for the Fourth Respondent	Taussig Cherrie Fildes

ORDERS

		VID 233 of 2023
BETWEEN:	VANIS CAPITAL INVESTMENTS PTY LTD (AS TRUSTEE OF THE VANIS CAPITAL INVESTMENT TRUST) First Applicant ; M&M OAKLEY INVESTMENTS PTY LTD (AS TRUSTEE OF THE MICHAEL OAKLEY & ASSOCIATES TRUST) Second Applicant
AND:	JULIE LORRAINE MORRIS First Respondent ; CRAIG MORRIS & ASSOCIATES PTY LTD (AS TRUSTEE OF THE MORRIS FAMILY TRUST) Second Respondent ; TASMAN LOGISTICS SERVICES PTY LTD Third Respondent ; CRAIG ANDREW MORRIS Fourth Respondent

order made by:	ANDERSON J
DATE OF ORDER:	19 APril 2023

THE COURT ORDERS THAT:

PROCEDURAL MATTERS

1. Pursuant to r 1.10 of the Federal Court (Corporation) Rules 2000 (Cth) and r 1.39 of the Federal Court Rules 2011 (Cth) (Federal Court Rules), the time in which the:

   1. Originating Motion;

   2. Concise Statement;

   3. Affidavit of Michael Oakley; and

   4. Affidavit of Ivan Vanis,

filed on 13 April 2023, is to be served on the Respondents be abridged to permit the urgent hearing of the Applicants claim for interlocutory relief on Wednesday, 19 April 2023.

2. Until further order, pursuant to ss 37AF(1)(b) and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), on the ground that the order is necessary to prevent prejudice in the proper administration of justice, the following documents are confidential and not to be published or made available to any person, to be marked or designated as confidential, and to be held on the Court file until further order of the Court:

   1. MRO-2, Draft Share Acquisition Agreement;

   2. MRO-3, ANZ Indicative Term Sheet dated 19 December 2022;

   3. MRO-4, Project Prorate/Jelly Terms Sheet extension dated 29 March 2023;

   4. MRO-5, Application of Julie Morris (MLC9456/2021) dated 6 April 2023;

   5. MRO-6, Affidavit of Julie Morris (MLC9456/2021) dated 6 April 2023;

   6. MRO-7, Affidavit of Gregory Peter O’Shea (MLC9456/2021) dated 6 April 2023;

   7. MRO-8, Vanis Capital Investments Pty Ltd and Craig Morris Associates;

   8. MRO-9, Project Prorate – FY25 Forecast Report

   9. MRO-10, Approved proposed funding term sheet dated 18 January 2023

3. Pursuant to r.9.05 of the Federal Court Rules that Craig Andrew Morris, be joined as a party to these proceedings (Fourth Respondent).

4. The Applicants be granted leave to file the amended originating application dated 19 April 2023 handed to the Court by counsel for the Applicants during the course of the hearing on 19 April 2023.

INTERLOCUTORY MATTERS

5. The Applicants’ claim for interlocutory relief in their amended originating application dated 19 April 2023 be dismissed.

6. The Applicants pay the First Respondent’s costs of the Applicants’ interlocutory application, to be fixed by way of an agreed lump sum or, in default of agreement, by way of a lump sum fixed by a Registrar.

7. The First Respondent’s interlocutory application dated 18 April 2023 be dismissed

8. The First Respondent pay the Applicants and the Fourth Respondent’s costs of the First Respondent’s interlocutory application, to be fixed by way of an agreed lump sum or, in default of agreement, by way of a lump sum fixed by a Registrar.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANDERSON J

introduction

1. The Applicants are minority shareholders (25%) of Tasman Logistics Services Pty Ltd (Tasman) (Third Respondent). The majority shareholder of Tasman (as to 75%) is Craig Morris & Associates Pty Ltd (as Trustee of the Morris Family Trust) (CMA) (Second Respondent), of which the shareholders and directors are Julie Morris (First Respondent) and Craig Morris (Fourth Respondent).

2. Ms Morris is party to a family law proceeding against Mr Morris in the Federal Circuit and Family Court (Division 1), seeking a property settlement of the assets of their marriage (family law proceeding).

3. The Applicants seek interlocutory relief on the basis of allegations that Ms Morris has acted in a manner which is oppressive in the affairs of Tasman, contrary to s 232 of the Corporations Act 2001 (Cth) (Act), by having:

1. stated and maintained her opposition and refusal to approve a component of a proposed transaction by Tasman, for the collateral purpose of procuring an advantageous resolution of her personal claims against Mr Morris for property settlement;

2. prevaricated in seeking and receiving information as to the proposed transaction, jeopardising the limited time in which Tasman can execute the transaction; and

3. actively sought to prevent Tasman from entering the transaction, including by precipitously making an application in her family law proceeding for orders restraining Mr Morris and the Applicants from enabling Tasman to carry out its proposed transaction.

4. The Applicants rely on the...