Ascot Investments Pty Ltd v Harper
148 CLR 33733 ALR 631
(Judgment by: MASON J)
Between: ASCOT INVESTMENTS PTY LTD
And: HARPER
Judges:
Barwick C.J.
Gibbs J.
Stephen J.
Mason J.Murphy J.
Aickin J.
Wilson J.
Subject References:
Family Law
Judgment date: 2 February 1981
CANBERRA
Judgment by:
MASON J
An essential preliminary to the making of orders against the appellant company and its three directors who are sons of the marriage, requiring them to register the transfer of the 7,000 "A" shares from the husband to the wife, was a finding that the directors had failed to properly exercise their discretion under the articles of association to approve or refuse registration. It was not even shown that the transfer was submitted to the directors for registration, let alone that, the transfer having been submitted, the directors refused to register for some extraneous reason. So much at least would need to be shown under the general law to entitle the transferee to orders of the kind sought against the company and the three directors.
Assuming, without deciding, that the Family Law Act confers power on the Family Court to make orders of the kind sought at the instance of a wife who is a transferee of shares against a company and its directors in appropriate circumstances, those circumstances have not been shown to exist here. There is no need for me to add to the remarks made by Gibbs J. on this aspect of the case.
No provision of the Family Law Act empowers the Family Court to make orders of the kind in question otherwise than in accordance with the settled principles of law governing the exercise by directors of a discretion to approve or refuse registration of a transfer of shares, except perhaps in the exceptional case where it is shown that the company is simply the creature of the husband and no such case was made out here.
Accordingly I consider that the order made against the appellant company and that made against the three directors should not have been made.
I would allow the appeal.