Monday, December 3, 2012

Forthcoming judgments in the High Court of Australia

On Wednesday, 5 December 2012 the High Court will deliver three judgments.
The first is in Papaconstuntinos v Holmes a Court.  This case arises out of the bid made by Holmes a Court and Russell Crowe in 20005 to inject money into the South Sydney Rugby League Club, a bid that was bitterly opposed by the appellant.  In the course of the antagonistic machinations prior to the Extraordinary General Meeting that approved the bid, Holmes a Court wrote a letter to Andrew Fergusson (state secretary of the CFMEU, of which the appellant was a member) accusing the appellant of making misleading statements about the bid, and making allegation of a misuse of Souths’ funds a few years earlier at a time when the appellant’s son was employed by Souths.  The letter was found to be defamatory.  At issue is whether or not Holmes a Court was entitled to succeed on a defence of qualified privilege at common law.
Next is Westfield Management Ltd v AMP Capital Property Nominees Ltd, an appeal from the NSW Court of Appeal arising out of a dispute between UniSuper and Westfield whether to wind-up their joint venture investment scheme in the Karrinyup Regional Shopping Centre in Perth.  At issue is whether or not the Unitholders’ and Joint Venture Agreement properly construed has the effect that UniSuper cannot vote to wind-up the scheme under section 601NB of the Corporations Act without the prior written consent of Westfield, and if so whether the Agreement is to that extent unenforceable as being contrary to the public interest.
Finally, judgment will be delivered in Commissioner of Taxation v Consolidated Media Holdings Ltd.  This case considers the proper constructions of section 159GZZZP of the Income Tax Assessment Act 1936 and its application to a buy-back of 29% of Consolidated Media’s shareholding in Crown Melbourne Ltd at a price of $1 billion. At issue is whether this should properly be treated as a capital gain, or whether it should be treated as a dividend (and therefore entitled to a rebate).

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