Davis-Jacenko v Roxy's Bootcamp Pty Limited (No 2) - [2024] NSWSC 827

Supreme Court

New South Wales

Medium Neutral Citation: Davis-Jacenko v Roxy’s Bootcamp Pty Limited (No 2) [2024] NSWSC 827
Hearing dates: 03 July 2024
Date of orders: 03 July 2024
Decision date: 03 July 2024
Jurisdiction: Equity - Corporations List
Before: McGrath J
Decision:
Defendant company wound up and liquidators appointed

Catchwords:
CORPORATIONS — winding up — just and equitable ground — where the relationship between members of the corporation has irretrievably broken down — appointment of liquidators with consent — COSTS — indemnity costs — conduct of defendants not unreasonable — HELD — costs ordered on ordinary basis

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Corporations Act2001 (Cth), ss 461(1)(k), 465A(1), 466, 467(3)(b)

Cases Cited:
Australian Securities & Investments Commission v Austimber Pty Ltd [1999] FCA 566; (1999) 17 ACLC 893
Cappellov HomeBuilding Pty Ltd [2023] NSWCA 109
Carter v New Tel Ltd (2003) 44 ACSR 661; [2003] NSWSC 128
Davis-Jacenko v Roxy's Boot Camp Pty Limited [2024] NSWSC 702
Deputy Commissioner of Taxation v A & S Services Pty Ltd [2017] FCA 437
In the matter of A Twins Spare Parts Pty Ltd [2020] NSWSC 156
In the matters of Seedz Investments Pty Ltd, Snap Fitness Double Bay Pty Ltd, Yelneh Industries Pty Ltd and Fitness Management Pty Ltd [2017] NSWSC 650
Re Hardy Bros Equipment Pty Ltd [2021] NSWSC 1693

Category: Principal judgment
Parties: Roxy Davis-Jacenko (Plaintiff/Applicant)
Roxy’s Bootcamp Pty Ltd ACN 674 872 872 (First Defendant/Respondent)
Tleis Investments Group Pty Ltd in its own capacity and as trustee for the Tleis Trust (Second Defendant)
Salameh Investments Pty Ltd in its own capacity and as trustee for the Salameh Family Trust (Third Defendant)
Representation:
Counsel:
G George (Plaintiff/Applicant)
B Shaw (solicitor) (First Defendant/Respondent)
P Yazbeck (solicitor) (Second and Third Defendants)
Solicitors:
Hitch Advisory (Plaintiff/Applicant)
Bridges Lawyers (First Defendant/Respondent)
Yazbeck Law (Second and Third Defendants)

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

JUDGMENT— ex tempore (revised 4 July 2024)

INTRODUCTION

This is an application made by the plaintiff, Roxy Davis-Jacenko, pursuant to an amended originating process which has been filed today seeking an order that the first defendant, Roxy's Bootcamp Pty Limited (Company), be wound up pursuant to s 461(1)(k) of the Corporations Act2001 (Cth) and an order that Andrew Blundell and Simon Cathro of Simon Cathro & Partners Pty Ltd be appointed as joint and several liquidators of the Company.
I previously dealt with an application by Ms Davis-Jacenko for the appointment of provisional liquidators to the Company, concluding that provisional liquidators should be appointed and appointing Messrs Blundell and Cathro as the provisional liquidators of the Company: Davis-Jacenko v Roxy's Bootcamp Pty Limited [2024] NSWSC 702 (Earlier Judgment) at [25]. This judgment assumes familiarity with the Earlier Judgment.
The application for the winding-up of the Company and the appointment of liquidators to it is made with the consent of the second and third defendants, being Tleis Investments Group Pty Ltd in its own capacity and as…

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.

Keep reading for free

Create a free CaseChat account to read Davis-Jacenko v Roxy's Bootcamp Pty Limited (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWSC 827
Decision Date: 03 July 2024

CaseChat Overview and Summary

The case of Davis-Jacenko v Roxy's Bootcamp Pty Limited (No 2) involved a dispute in the Federal Court of Australia concerning the winding up of a corporation on the just and equitable ground. The plaintiffs, Davis-Jacenko, sought to have the corporation, Roxy's Bootcamp Pty Limited, wound up due to an irretrievable breakdown in the relationship between the members. The case reached the court following the appointment of liquidators by consent of the parties.

The primary legal issue before the court was whether the breakdown in the relationship between the members of the corporation was sufficient to warrant its winding up on just and equitable grounds. Additionally, the court had to determine the appropriate order regarding costs, particularly whether indemnity costs should be awarded to the plaintiffs. The defendants argued that their conduct was not unreasonable and thus should not attract indemnity costs.

The court found that the relationship between the members had indeed deteriorated to the point where the just and equitable ground for winding up was satisfied. However, the court held that the defendants' conduct was not unreasonable enough to warrant indemnity costs. Instead, the court ordered costs on the ordinary basis, reflecting the overall conduct of the parties during the proceedings. This decision underscored the importance of the relationship between members in corporate disputes and the nuanced approach to awarding costs in such matters.

Orders