In Stratford Sun Limited v OM Holdings Limited; In the Matter of OM Holdings Limited [2011] FCA 414 Judge Foster of the Federal Court refused an application for urgent interim injunctive relief restraining OMH from submitting certain of the resolutions (including a share issue) proposed in the Notice of Meeting to the shareholders at the AGM.

In giving his reasons Judge Foster accepted that there may be serious questions to be tried but did not accept that the balance of convenience and the balance of justice was in favour of the general meeting not proceeding.

“The fact that no real alteration in the parties’ rights is likely to occur before the final hearing and the fact that there is a very real possibility that the proposed listing on the HKSE and associated new share issue may be effectively stymied by the grant of interlocutory relief incline me against the grant of interlocutory relief. There is also the matter of wasted costs which, on its own, would not carry much weight in the face of the offer by Stratford Sun of a secured undertaking as to damages but which, along with the other factors to which I have referred, should carry some weight. Finally, there is the position of all of the other shareholders in OMH. They are expecting the AGM to go ahead and they appear to be ready to vote on the resolutions proposed to be put to the meeting. They must be taken to be well aware of CML’s complaints and concerns, yet none of them has attempted to stop the meeting. Their right to have the meeting proceed weighs heavily against injunctive relief.

I am also concerned about the way in which the matter has unfolded since the Notice of Meeting was despatched. It seems to me that Stratford Sun may well have always intended always to block the putting of the contentious resolutions at the meeting but chose not to move earlier in order to maximise its prospects for interlocutory relief. It does seem to me that Stratford Sun decided that it would be in its best interests to make the present application at the very last moment when it could have done so much earlier. My present feeling about the time that has elapsed is that it has been deliberately allowed to elapse for strategic or tactical reasons.
For all these reasons, I think that the balance of convenience and justice falls on the side of refusing injunctive relief and I propose to take that course.”