Bentley v Hocking [2018] QSC 43

SUPREME COURT OF QUEENSLAND CITATION: Bentley v Hocking [2018] QSC 43 PARTIES: NAOMI JULIA ROSE BENTLEY (applicant) v MICHAEL ANTHONY HOCKING (respondent) FILE NO/S: No 1762 of 2018 DIVISION: Trial PROCEEDING: Originating Application DELIVERED ON: 19 February 2018 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 19 February 2018 JUDGE: Atkinson J ORDER: Application dismissed CATCHWORDS: EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – INJUNCTIONS TO PRESERVE STATUS QUO OR PROPERTY PENDING DETERMINATION OF RIGHTS – OTHER CASES – where the applicant is a co-owner of a horse – where a majority of co- owners have resolved via correspondence to sell the horse – where the managing owner proposes to sell the horse at auction – where the applicant claims that a meeting was required to be held to resolve that the horse be sold – whether the applicant is entitled to an injunction restraining sale of the horse CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the parties were subject to a co-owner agreement provided by Racing Australia – where clause 2.1 of the co-owner agreement provided that no meetings were required to be held but that reasonable notice must be given when decisions requiring majority consent are made – where clause 2.3 of the co-owner agreement provided that decisions requiring majority consent may be decided at a meeting of the co-owners – where the applicant claims that a meeting was required for majority consent to be given by the co-owners to sale of the horse – whether a meeting of the co- owners was required for majority consent -- 1 of 3 -- 2 COUNSEL: V Pennisi (sol) for the applicant The respondent appeared on his own behalf SOLICITORS: V Pennisi & Associates for the applicant The respondent appeared on his own behalf [1] My order is that the originating application be dismissed. These are my reasons. [2] The applicant, Naomi Bentley, has applied for an injunction restraining the respondent, Michael Hocking, from selling a horse named Trenchant Love at auction with bloodstockauction.com on 20 February 2018. Ms Bentley is one of a number of co- owners of that horse, which appears also to be known by the name Archer’s Paradox. There is a document before me, exhibit 2, setting out the names and contact details of the co-owners. They show that Ms Bentley owns 10 per cent of the horse. [3] The co-ownership of the horse is governed by a standard co-owner agreement provided by Racing Australia. The relevant paragraph is paragraph 3.6, which provides that the managing owner can only make and/or action certain decisions on behalf of the co-owners with majority consent. One of these decisions, under paragraph 3.6(e), is a decision to offer the whole of the horse for sale. It appears, from exhibit 1, that a majority of the owners, owning some 60 per cent, not including Mr Hocking, have requested that the horse be sold. It is clear that there is majority consent for the sale of the horse. A decision to sell the horse does not need unanimous consent or, indeed, any special consent. [4] The complaint by the applicant is, then, that no meeting has been held at which she would be entitled to vote to the extent of her percentage of ownership and perhaps try to persuade those who have clearly demonstrated that they wish the horse to be sold not to sell the horse. [5] Clause 2 of the standard co-owner agreement sets out how decisions can be made by co- owners. The process has also been confirmed by advice received from the general counsel for Racing Australia. [6] Clause 2.1 provides that no meetings of co-owners are required to be held. However, if a decision requires majority consent, then the managing owner must provide reasonable notice to all the co-owners in relation to the issue to be decided upon. That notice can be given in accordance with the methods referred to in clause 10 of the agreement – that is, by email or by mail. Clause 2.2 provides that the managing owner is bound by decisions made or approvals given by the majority of the co-owners. [7] Again, clause 2.3 provides that formal meetings are not required, but that nevertheless, a decision that requires a majority consent may be decided at a meeting of co-owners. That does not require there to be a meeting, but does provide that there may be a meeting at which these decisions were made. -- 2 of 3 -- 3 [8] Therefore, the first matter I should be satisfied of is whether or not notice was given to the applicant of the proposed sale of the horse. On 6 February 2018, the respondent, the managing owner of the horse, provided notice to all of the co-owners that he had received correspondence from the majority of the owners requesting that the horse be sold and the current partnership dissolved. He provided notice that the horse would be auctioned in accordance with the majority request. [9] Once, of course, the majority had decided, as they had in this case, it would have been lacking utility to convene a meeting to conduct a further vote. The majority owners requesting a sale was sufficient to satisfy clause 3.6(e). Indeed, once the majority had made a decision, as they clearly had in this case, the managing owner was bound by that decision. Had the request to sell not been made by a majority of the owners, it would have been appropriate to give notice and then hold a vote. But in the circumstances, there was no utility in the vote, because a majority of owners had already indicated that they required the horse to be sold. And under clause 2.2, the managing owner was bound by that majority decision. [10] In the circumstances, there is no utility in granting an injunction, and I refuse the application. -- 3 of 3 --