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Davis-Jacenko v Roxy's Bootcamp Pty Limited

Davis-Jacenko v Roxy's Bootcamp Pty Limited

Case [2024] NSWSC 702 5 June 2024

Provisional Liquidators

Winding Up & Liquidation

Corporate Law & Governance

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Supreme Court

New South Wales

Medium Neutral Citation: Davis-Jacenko v Roxy’s Bootcamp Pty Limited [2024] NSWSC 702
Hearing dates: 27 May 2024, 4–5 June 2024
Date of orders: 5 June 2024
Decision date: 05 June 2024
Jurisdiction: Equity - Corporations List
Before: McGrath J
Decision:
Provisional liquidators appointed (see [25])

Catchwords:
CORPORATIONS – provisional liquidators – application by shareholder to appoint – no resolution of contested facts on interlocutory application – alleged scam promotion – winding up on just and equitable ground highly likely – HELD – provisional liquidators appointed

Legislation Cited:
Corporations Act 2001 (Cth), s 472

Cases Cited:
Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 2) [2013] FCA 234; (2013) 93 ACSR 189
Australian Securities & Investments Commission v Austimber Pty Ltd [1999] FCA 566; (1999) 17 ACLC 893
Australian Securities and Investments Commission v Oceanic Asset Management Pty Ltd, In The Matter of Oceanic Asset Management Pty Ltd (2015) 108 ACSR 367; [2015] FCA 966
Australian Securities and Investments Commission v Uglii Corporation Ltd [2016] FCA 1099; (2016) 116 ACSR 389
Australian Securities Commission v Solomon (1996) 19 ACSR 73
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1
Deputy Commissioner of Taxation v A & S Services Pty Ltd [2017] FCA 437
Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729
Warner-Lambert Company LLC v Apotex Pty Ltd [2014] FCAFC 59; (2014) 311 ALR 632

Category: Principal judgment
Parties: Roxy Elise Davis-Jacenko (Plaintiff)
Roxy’s Bootcamp Pty Limited ACN 674 872 872 (Defendant)
Representation:
Counsel:
G George (Plaintiff)
S Constable (Defendant)
Solicitors:
Hitch Advisory (Plaintiff)
Yazbeck Law (Defendant)

File Number(s): 2024/00193403
Publication restriction: Nil

JUDGMENT – EX TEMPORE (REVISED 7 jUNE 2024)

INTRODUCTION

For the purposes of exposing my central considerations to the parties, I will now give brief reasons for the orders I intend to make. While I will give more detailed reasons in due course, the necessity to give a much more limited form of my reasons has arisen because of the urgency of this matter which has been pressed upon me by the parties.
The plaintiff, Roxy Davis-Jacenko, is the 50% shareholder of the defendant, Roxy's Bootcamp Pty Limited ACN 674 872 872 (Company). Ms Davis-Jacenko applies for the appointment of provisional liquidators to the Company.
Tleis Investments Group Pty Ltd as trustee for the Tleis Trust and Salameh Investments Pty Ltd as trustee for the Salameh Family Trust are each 25% shareholders of the Company. Youssef Tleis is the principal person associated with Tleis Investments. Kassim Alaouie is associated with Salameh Investments, which is owned and controlled by his wife, Amani Salameh.
The Company, Tleis Investments and Salameh Investments seek interlocutory orders that Ms Davis-Jacenko restore their access to various email and social media accounts, provide passwords to them and deliver to their solicitor the SAC Hermes Birkin 30 Bag (Veau Togo 8L Beton) (Hermes Birkin bag) and a 2024 Women's Rolex…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Davis-Jacenko v Roxy's Bootcamp Pty Limited

Details

AGLC: Davis-Jacenko v Roxy's Bootcamp Pty Limited [2024] NSWSC 702
Case: [2024] NSWSC 702
Decision Date: 05 June 2024

CaseChat Overview and Summary

The case of Davis-Jacenko v Roxy's Bootcamp Pty Limited was heard in the Supreme Court of Western Australia. The matter involved a shareholder, Davis-Jacenko, who sought to have provisional liquidators appointed for Roxy's Bootcamp Pty Limited. The dispute centred around allegations that the company was engaged in deceptive and misleading conduct, purportedly promoting a scam. Davis-Jacenko claimed that the company was no longer able to meet its liabilities as they fell due, suggesting that a winding up on the just and equitable ground was highly likely.

The primary legal issue before the court was whether the applicant had established a prima facie case warranting the appointment of provisional liquidators. The court considered the statutory criteria under section 459H of the Corporations Act 2001 (Cth), focusing on whether there was evidence of the company being unable to pay its debts. The court also evaluated whether it was just and equitable to wind up the company, particularly given the alleged scam activities. The analysis involved a consideration of the balance of convenience and the likelihood of the applicant succeeding on the merits of the main application.

The court found that Davis-Jacenko had demonstrated a strong likelihood of establishing that the company was unable to pay its debts and that it was just and equitable to wind up the company. The evidence presented suggested significant irregularities and fraudulent conduct within the company, which undermined its financial stability. Given these circumstances, the court held that it was appropriate to appoint provisional liquidators to protect the company's assets and to preserve evidence pending the outcome of the main application for winding up. The court's decision was based on a careful assessment of the prima facie evidence and the potential for significant prejudice to creditors and members if the application was not granted.

The final orders of the court included the appointment of provisional liquidators to Roxy's Bootcamp Pty Limited, effective immediately. The liquidators were directed to take control of the company's assets and affairs, and to report to the court on their findings and actions. This decision provided a temporary measure to safeguard the company's interests while the broader application for winding up was prepared and heard.

Orders