Archive for June, 2011

Nothing On

June 26, 2011

I haven’t been to any live musical events for a fortnight now, and it is a week to go before the next, but that’s not what I mean.

Nothing On is the title of the play-within-a-play in Michael Frayn’s Noises Off which D and I went to see at NIDA on Friday night.

I’m an infrequent theatre-goer. In part, my musical dry spell motivated me to seek something out, but the immediate impetus was Victor‘s brief but reliable account.

We almost didn’t go. First I baulked at the Ticketek booking fee and at the last minute the car had a flat battery. By then I had paid the fee and bought the tickets, so it was more than lucky that our friendly neighbour lent us her car.

ANZAC Parade from Kingsford to Kensington on a Friday night is a lively precinct. Maybe on this occasion the liveliness had something to do with the end of semester. NIDA has a plethora of shows running and there was a distinct atmosphere to the foyer – slightly luvvie, a touch festive, theatre industry types and NIDA invitees, students and their friends, and a smattering of General Public. The main Parade Theatre, as I’ve commented before, is an inviting space with a more traditional theatre-ish feel than most venues in Sydney.

Noises Off is built on an ingenious conceit. The first act is a desperately last-minute tech-rehearsal of the first act of Nothing On, a multi-doored farce. There won’t be a dress rehearsal per se: “Just think of the first night as the final dress” the director tells the cast – one of many theatrical in-jokes to which this particular audience responded enthusiastically.

For the second act the set turns round and the multiple door exits and entrances are reversed as we are given the backstage drama of a mid-run performance. It’s nothing serious – we’re not talking The Dresser, here, but it is something of a tour de force of frenetic physical activity. Structurally, the ingenuity is that it builds on the first act (which we have already seen in rehearsal) which purports to proceed on the other side of the set.

The third act turns the set back around and we are by now at the end of the run as the actors struggle to hold things together.

On Friday the play was performed with only one interval. For me, the third act suffered because of this, though maybe it was always going to be an anticlimax after the second.

D and I both enjoyed it and it had us talking over dinner at home afterwards until well after midnight. D was less accepting than I of the standard of performance. I thought it was good enough. I could imagine a better performance but there were bits which were admirably and even, in context, brilliantly done and the moments when I was specifically conscious of any particular shortcoming were few. It was certainly good enough for $28 or even for $30.475, if you include the booking fee.

We both thought that the strong point of the performances lay in the physical theatre. To me, that is part of the modern style of acting (which can sometimes become problematic in more classical plays). As a non-native speaker, D is particularly sensitive to clarity of diction, where he found the standard variable. I suspect D also probably has rather old fashioned tastes about what constitutes “acting.”

D thought it was probably quite an easy play and in some ways that must be true (this is no Hamlet and if you look on the web you can see it is assayed by a wide range of companies). My own view is that no play is easy even if it is easy in some ways. To adopt analogies closer to my own home ground, Noises Off is more of a Litolff Scherzo Humorestique or even a Saint-Saens 2nd Concerto second or third movement than a the first movement of either Brahms Piano Concerto. The latter require depth, but that doesn’t mean that the former won’t benefit from polish and sprezzatura. (I couldn’t find a web-transcription of Peter Katin’s performance of the Litolff which illustrates that point very well in comparison to any number of other more sedate versions.)

You might think from the following passage that this is a play with philosophical pretensions:

“That’s what it’s all about. Doors and sardines. Getting on – getting off. Getting the sardines on – getting the sardines off. That’s farce. That’s the theatre. That’s life.”

If so, you’d be wrong: it’s a nice night’s entertainment. And that’s not such a bad thing at all. Sometimes there’s nothing like a good old-fashioned plate of sardines.

Old joke

June 18, 2011

A visit again to Jz, who seemed in better shape than last time.

I had come straight from work and was going out later, and so had my suit (well, one of my two suits) on. I doubt if Jz had ever seen me so well-dressed. Jz’s response to my appearance was a testament to the transforming power of respectable clothing. Jz asked me to sit close to the bed and put my feet up.

Jz was interested in my shoes (which I had taken off).

The shoes in question have passed the point where they are worth repairing: there is a crack on one which will show a sliver of sock unless my socks are black; the heels are down to the wood (dangerous on wet days); just that day I had noticed the left toe parting company from the sole as a previous supaglue fix lost its adhesion.

I have found it difficult to find a suitable replacement pair. Like so many other things these days, most shoes in the shops and certainly most cheap shoes come from China. Any shoe I like the look and price of turns out to be too narrow and shallow and rather flimsily made.

I mentioned to Jz that I’d bought these particular shoes 7 or 8 years ago in Madrid.

“Of course,” Jz said, “one always buys one’s shoes in Madrid.”

In case the tone isn’t evident in writing, that was a gentle joke, and I knew an older one to match. I said:

“All my laundry’s flown to Cairo.”

Jz speaks rather slowly now, but hardly broke rhythm supplying the next line:

“Where they don’t use so much starch.”

It was a heartwarming moment. Sometimes the old jokes are the best.

Just and equitable?

June 16, 2011

On 1 April this year, Justice Barrett handed down his decision in Beck v L W Furniture Consolidated (Aust) Pty Limited [2011] NSWSC 235.

The case concerned a company, L W Furniture Consolidated (Aust) Pty Limited (LWC), which had been founded by a Mr and Mrs Weinstock in 1973. Mr and Mrs Weinstock died in 2003 and 2004. Mulitiple disputes then followed between Mrs Beck, their daughter, and Amiram Weinstock, their son. Quite a lot of money was involved. At the heart of the dispute, in general terms, was the terms on which, as a result of wills and various arrangements made by Mr Weinstock in his lifetime, provision had been made for Amiram to receive two-thirds of his father’s estate and Mrs Beck to receive one-third. That is a simplification, of course.

One reason it is a simplification is that people like Mr and Mrs Weinstock did not, generally speaking, own directly the business assets which they (or, more likely, he) controlled, but (mostly for tax reasons, possibly originally with an eye to avoiding death duties)instead established combinations of company and trust structures. LWC was such a structure, or part of such a structure. From the “Consolidated” part of its name it is likely that in turn it owned shares in other companies through which the Weinstock’s businesses were conducted or assets were held.

The odd thing about LWC, which I can only assume was for taxation minimisation purposes, was that none of the shareholders in LWC was entitled to vote at a meeting of shareholders. Mr Weinstock had “A” class shares which, in his lifetime, he could convert so that he had the entitlement to vote for so long as he remained alive and the owner of those shares, but apparently he never did convert them, though meetings were conducted where the members purported to pass resolutions from time to time. None of the other issued shares carried any entitlement to vote.

After Mr and Mrs Weinstock’s death, his son, Amiram (ADW) and Helen Weinstock, ADW’s wife, controlled the company. In 2010, Mrs Beck (who, like ADW, had a non-voting share)commenced proceedings to wind up the company. Initially, one of the grounds on which she made her claim was that the affairs of the company were being conducted “oppressively” – in lay terms, unfairly to her. However, by the time of the trial the only ground advanced was what is known as the “just and equitable” ground. This is a bit of a catch-all, but in this case the claim was quite simple. Mrs Beck said that there was a “constitutional and administrative vacuum” which meant that the company could no longer operate. This was because, she said, there were no directors, and no shareholders who could vote to appoint directors, and the situation was irremediable.

Justice Barrett accepted that this is a recognized basis for winding up a company, and referred to Lunn v Cardiff Coal Company (No 3) [2003] NSWSC 789; (2003) 177 FLR 411 as a recent example. That case is itself worthy of a post. It involved a company which turned out to own valuable land near Newcastle, but which had long been dormant. In that case, the plaintiffs were held to be shareholders in the company, though the corporate skullduggery which they claimed to have occurred (and which was ultimately found to have occurred) was so outlandish that Justice Bryson refused to stop the sale of the land when the plaintiffs tried to stop it in advance of the trial because it was so outlandish. As a result, by the time the case was finally heard, the land had been sold and the money was mostly gone.

Justice Barrett dismissed Mrs Beck’s application. The situation was not irremediable. Even though no shareholders could vote to appoint directors, the directors had the power to allot shares and some of the classes of shares which they could allot were shares which would have voting powers. So long as there were directors, there was not a vacuum.

So were there any directors?

The original directors were Mr and Mrs Weinstock. Successive annual general meetings of the company had purported to re-elect them as directors. This was a nullity, because none of the shareholders could vote, but it didn’t matter because the articles had a kind of catch-all provision to meet this eventuality. If directors offered themselves for re-election at an annual general meeting, they were deemed to have been re-elected “unless at that meeting it is expressly resolved not to fill the vacated office or unless a resolution for the re-election of that director is put to the meeting and lost.” Justice Barrett held that in the circumstances Mr and Mrs Weinstock had offered themselves for re-election and at least for so long as there were annual general meetings, were deemed to be re-elected by this article.

In 1973, Mr and Mrs Weinstock had appointed ADW as a director. The articles gave them the power to do this and such directors could hold office until the next annual general meeting. However, Justice Barrett held that the provision about deemed re-election did not apply to directors appointed in this way, because they ceased to be directors immediately before the next annual general meeting and were not “retiring directors” who were deemed to be re-elected under the catch-all article. Mrs Beck had also been appointed a director at the same time, but “resigned” (the ” ” is because she wasn’t actually a director by then) in 1982.

In 2003, sfter his father’s death and at a time when Mrs Weinstock had ceased to be a director by reason of mental infirmity, ADW, who had acted as though he was a director all along since his first appointment, appointed his wife, Helen, as a director. As he wasn’t a director, this couldn’t have been effective. But the Corporations Law gives a court power (at section 1322(4)) to make:

an order declaring that any act, matter or thing purporting to have been done, or any proceeding purporting to have been instituted or taken, under this Act or in relation to a corporation is not invalid by reason of any contravention of a provision of this Act or a provision of the constitution of a corporation

The court can make such an order, provided that “no substantial injustice has been or is likely to be caused to any person” if it is satisfied of any one of the following three matters:

(i) that the act, matter or thing, or the proceeding, referred to in that paragraph is essentially of a procedural nature;
(ii) that the person or persons concerned in or party to the contravention or failure acted honestly; or
(iii) that it is just and equitable that the order be made

Justice Barrett made the order on the third ground.   [See postscript below: his decision was overturned on appeal by the Court of Appeal] He did not consider that the contravention was only procedural, and it could not affirmatively be said that ADW had acted honestly, even if there was no suggestion that he acted dishonestly. It was just and equitable because ADW, who had acted as a “de facto” director for many years, could reasonably have appointed his wife as a director of a family company to make up the numbers (there had to be two directors) and his wife had since acted as a de facto director for some seven years. Whether her actions as a director might cause substantial injustice to someone (ie, Mrs Beck) was not to the point because:

“The question is whether “substantial injustice” arose from the circumstance that she was purportedly appointed a director, not whether “substantial injustice” arose more remotely from what she did or could do in exercise of the powers thereby obtained.”

As a result, there was no “vacuum” in the governance of the company, because Helen Weinstock could now appoint her husband ADW (who had ostensibly appointed her, albeit that the appointment was now to be validated by the order) as a director to make up the necessary two, and if the absence of any voting shares meant there was a vacuum, the directors could then allot presently unissued shares, including from classes of shares provided for in the articles which did enable those shareholders to vote.

But in fact it doesn’t appear that Justice Barrett thought the absence of any voting shareholders was a problem at all, and this is the odd thing (to me) about his decision.

You will recall that directors appointed by directors could only hold office until the next annual general meeting of the company. So doesn’t there have to be an AGM to appoint new directors?

Well, apparently not.

One of the historical complexities of company law in Australia is that there have been successive rejigs of the legislative framework, notably in 1936, 1961 (the Companies Act), 1981 (the Companies Code), 1989 (the Corporations Law) and a subsequent flurry owing to constitutional complications resulting in the present Corporations Act 2001, which unlike the previous regimes is a Commonwealth Act which operates as such as a result of a referral by the States to the Commonwealth of the corporations power. This can cause difficulties, especially when the articles of a company have been drafted on the assumption of legislation which has since been amended or replaced.

At the time that LWC was formed, the relevant legislation was the 1961 Act. That Act required companies to hold annual general meetings. Article 45 of the company’s articles stated:

“An annual general meeting of the Company shall be held in accordance with the provisions of the Act.”

Justice Barrett interpreted this to mean that “an annual general meeting of the Company shall be held if the provisions of the Act require one to be held.” He said that in 1982 the Companies Code came into force to the exclusion of the 1961 Act. The reference to “the Act” in the articles did not extend to the new Code because under the Interpretation Act (which the articles adopted as the principle of interpretation of the articles) the Code did not amend or re-enact the 1961 Act, which was not, in fact, repealed until 2008.

The Code also included a provision requiring AGMs to be held, but the article itself had no content and instead the Code alone operated to require AGMs to be held. Then, in 1995, the Corporations Law (which had succeeded the Code) was amended to remove any requirement at all for a proprietary company such as LWC to hold AGMs. As a result, the power of directors to appoint directors who shall hold office until the next AGM was a power to appoint directors who could hold office until an event (an AGM) which would never occur, and hence a power to appoint directors who could hold office indefinitely.

That to me is extremely surprising. Normally, the powers of the directors are subject to the overriding supervision of the shareholders, who ultimately can remove them. In this case, the only shareholders who could ever do this would be the holders of any shares with voting rights which the directors themselves might choose to allot. It is hard to see how that is just and equitable, or how a court could find that no substantial injustice to the present shareholders was likely to be caused. The possibility is inherent in the situation and doesn’t depend on the likely actions of the directors so holding office: how can the court reach the conclusion that there is no likelihood of substantial injustice being caused?

This all depends on Justice Barrett’s interpretation of article 45 (which requires AGMs in accordance with the Act) as now being a nullity, but if so, that seems very much like an unintended consequence. I can think of other sorts of companies, such as “Home unit” companies which need to meet to determine the annual levies to be paid by shareholders, where annual general meetings continue to be held because the articles require this to occur. The power to appoint directors who shall hold office up to the next AGM strikes me as another reason why AGMs should continue to be held. Why should article 45 not mean that an annual general meeting of the company shall be held and that it is agreed by the articles that any such meetings will be in accordance with the Act?

Postscript

Justice Barrett’s decision to validate the appointment of Helen Weinstock was overturned on appeal –  Beck v LW Furniture Consolidated (Aust) Pty Ltd [2012] NSWCA 76 .  That was on the basis that the power to cure procedural irregularities only existed where the irregularity was nevertheless something which actually could be done but for some reason had not been.  That was not the case here because the core problem was that there were no directors who could appoint another director and no shareholders who could vote for fresh directors.

An undiscovered country

June 15, 2011

I have been visiting Jz, a very old friend whom I first met in West Pymble (which Jz calls “WP”) on my younger sister’s first birthday. I was three and a quarter at the time, so my memory of the day may be one of those memories distilled by photographic reminders rather than a true memory, but it is nevertheless quite distinct.

Jz is no longer in WP and unlikely now to return there. The nursing home where Jz now is offers “Lifestyle activities” including “sensory stimulation for clients with dementia.” Apparently these are an extra – not everyone gets these under Government-funded aged care.

Jz sent me off to make a cup of tea. Jz is a bit confused – I couldn’t say how much of it is symptoms and how much is the medication – and I wasn’t entirely sure that this would be possible in the way Jz said it would be, but I set off as instructed.

There was a bunch of elderly people sitting together round a table in a common area with cups of tea in front of them and listening to some cheerful music together who may have been receiving that “lifestyle activity.” I walked past them and pushed open another door.

Here there was no cheerful music. The room was dotted with individuals seated by themselves, obviously in their own worlds. At first I thought that the woman closest to me spoke to me, but after a moment I surmised she was talking to someone else, invisible to me. Others in the room were similarly engaged, if engaged at all. Just in time, I realised that the door I had come through, once closed, could not be opened from the side I was now on. I stepped back to the room with the happy music and let the door close itself.

I never did work out how to make a cup of tea there.

Playing to the Gallery

June 8, 2011

This evening to hear Lang Lang in recital at the Sydney Opera House.

The SOH was crawling with photographers, attracted by the Vivid Festival light show.

Lang Lang is a phenomenon and this was an occasion.

If I had played Beethoven Op 2 No 3 at my LMus exam oh so many years ago the way Lang Lang played it, “Uncle” Warwick and Sonja Hanke would surely have failed me for the second time. I do not suggest for a moment that I ever could have played like that. And I don’t just mean because (I’m reasonably sure) I did not observe the exposition repeat in the first movement (that’s AMEB examination performance practice, at least for grade exams: examiners haven’t the time to hear something twice). Lang Lang observed it.

It was big playing, stadium playing. In the first half I thought I was probably too close. The second Beethoven was the ‘Appassionata.’

My elderly neighbours (about 80; my guess: European Jews via South Africa) evidently enjoyed it. He played along with the Beethoven with his right hand with the occasional emphatic gesture with his tightly-furled program in his left. (Actually, that is quite distracting, but I overcame it.) Nevertheless, they were demanding critics. “He is better than he was when I heard him here last time,” she said. She enjoyed the Op 2 No 3 more than the Appassionata, but was critical of both: “He doesn’t have the tradition.”

Of course, LL does have a tradition and quite possibly more than one. A big bit of that has to be a Chinese tradition. His program biography takes him straight from the Beijing Central Music Conservatory to the Chicago Orchestra (via the Beijing Concert Hall), but he did stop by the Curtis Institute on the way.

In the second half, being close didn’t seem to matter any more. Maybe if I were Spanish or Russian I might have been more sensitive to the phenomenon, but now the theatrics seemed more well matched to my own possibly cliched expectations. In the Albeniz (Iberia Book I) LL took his time when he felt like it (dramatically) and had wonderfully controlled pianissimos, as well as some pretty exciting big moments. The Prokofiev 7th sonata was a bold choice for his audience. It’s a great work of course and it was a totally energized performance.

LL has lots of little expressions – eye rolls, rolling off the keyboard at a droll ending, singing (there is one little expression which I think of expressing a kind of chin-down solid baritonal effect which cropped up repeatedly). It is easy to be critical of them, but I think they are part of the means by which he makes such a strong projection. My favourite is his fondness for literally counting himself in (with a little conducting gesture) to a new, brisker tempo.

The last movement of the Prokofiev was fast; it was loud. Yes, that is exciting; yes, it was fun. I laughed for sheer delight when it was over.

There were 3 encores, eventually: Chopin Op 25 No 1 (The ‘Arp one); 彩云追月 (Coloured Clouds Chasing the Moon), and a transcription of the Rakoczi March (which sounded better live than it does here). I’m not expert enough to say exactly whose it was. At first the audience clapped along. (There was rather a lot of clapping.)

In China, you see Lang Lang on billboards. (He’s up there with Jackie Chan and Yao Ming, though not necessarily all on the one billboard. Each can command his own.) He is a Chinese cultural hero. His Chinese audience were out in force tonight. When the second encore started you could hear a ripple of recognition go through the hall. I don’t think it would be amiss for LL to announce such a number by its Chinese title as well, because people don’t always recognize the translation. (Try this yourself: Endstation Sehnsucht.)

He’s certainly quite a different sort of player to Radu Lupu, whose recordings consoled me through my recent hard times.

Life at the bar

June 7, 2011

I have just finished a quite short and sharp trial against a much more seasoned opponent.

There were changes of fortune. There was a low point. There was a turning point. Whether it turned sufficiently is yet to be determined.

“It’s like the battle of Phillippi,” my client remarked – with commendable cheer.

There had been a lot of early mornings. I had an early night when it ended, considerably earlier than it was set down to end.

I’m quite in the mood to see Lang Lang Wednesday night and Friday, in recital (though I’d prefer a smaller venue) and in one of his concerto appearances respectively. There was a risk the trial would still be running,, so I’m pleased it’s not.

I’ve been playing Schubert short pieces and sonatas. It’s striking how many of them feel like pianized string quartets. There are dabs of keyboard grandeur which at least in my own inexpert hands pose temptations and risks of lapses of taste. I cosseted or consoled myself through the final horrible pre-trial weekend by listening to a large quantity of Radu Lupu recordings, newly bought for just that purpose early on the Saturday.

A bad start

June 1, 2011

This morning, I accidentally poured water into the coffee grinder instead of into the water reservoir of my coffee machine.

I blame my caffeine-addicted matitudinally withdrawn state.

This must be close to a textbook example of catch-22.