An Australian company that developed a business based around filling and selling wine in cans has been ordered by the Victorian Supreme Court to be wound up after its founding shareholders failed in a multi-million dollar legal claim against the company’s Japanese partner, Daiwa Can Company.
The case was initiated by Melbourne-based businessmen Gregory Stokes and Steven Barics, who founded and owned 40 per cent of the shares in Barokes Pty Ltd. They alleged the Japanese company had engaged in oppressive conduct and undermined Barokes’ ability to achieve sales and licensing revenue goals set out in a 2012 agreement.
In turn, Daiwa asked the Court to wind up Barokes under section 461(1)(k) of the Corporations Act.
Several years ago, Mr Stokes and Mr Barics developed a technology (known as Vinsafe) for putting wine in cans. Barokes held the Vinsafe patent in 17 countries, including Australia and Japan. In 2009, Mr Stokes and Mr Baric became aware that Daiwa was producing and distributing competing wine-in-cans products in Japan. They claimed Daiwa’s products infringed their intellectual property, and they requested Daiwa either pay for a licence of the Vinsafe technology or cease selling the wine-in-cans products.
In 2012, the parties negotiated a joint venture deal and an agreement to develop the Barokes business. Daiwa paid Mr Stokes and Mr Baric about $18 million for 60 per cent of the shares in Barokes, and Daiwa agreed to provide ongoing funding.
The 2012 agreement and accompanying business plan set sales and production targets for Barokes, but the company failed to meet those targets over the next three financial years. In 2015, Daiwa decided to cease its financial support. Since then, the joint venture partners have been involved in litigation in Victoria, Japan and China.
Mr Stokes and Mr Baric alleged Daiwa caused Barokes to fail because Daiwa did not acquire a Vinsafe licence and, though a subsidiary, continued to sell competing products. The businessmen alleged Daiwa breached its obligations under the shareholder agreement to ‘act in good faith’ and to ‘use reasonable endeavours’ to assist the Barokes business, and that it had unfairly barred the Barokes corporate vehicle from suing Daiwa for patent infringement.
Justice Michael Sifris found the evidence did not support these allegations. His Honour found Daiwa had continually and consistently told Barokes that it was not infringing the Vinsafe patent; that it would not buy a licence; and that it would not cease the production or sale of its own wine-in-can products. Moreover, there was no provision in the 2012 agreements that restricted Daiwa’s business or required it to obtain a licence. As a result, Daiwa was under no obligation to buy a licence or cease competing.
Justice Sifris found Daiwa had not breached the shareholders’ agreement, nor acted oppressively. He said Daiwa had been ‘entirely vindicated’ in its decision to use its boardroom majority to vote down a plan for Barokes Pty Ltd to sue Daiwa in Japan, China and Australia.
His Honour held that Daiwa was entitled to call in the loans it had made to Barokes and to seek its winding up.
‘It is beyond doubt that the relationship between the parties has broken down irretrievably,’ Justice Sifris said. ‘The joint venture has failed, there is the clearest of deadlock, and the board cannot function properly.’
His Honour ordered Barokes be wound up.
NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.