du Boulay v. Worrell & Ors

[2008] QSC 174

SUPREME COURT OF QUEENSLAND

CITATION:

du Boulay v Worrell & Ors [2008] QSC 174

PARTIES:

ANDREW IAN du BOULAY
(plaintiff)
v
IVOR WORRELL, RAJ KHATRI AND MORGAN LANE
(defendants)

FILE NO:

S409 of 2004

DIVISION:

Trial Division

PROCEEDING:

Civil application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

1 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

21 July 2008

JUDGE:

Chesterman J

ORDER:

1.  The plaintiff’s application of 12 April 2007 is dismissed. 
2.  Judgment  for the defendants against the plaintiff on the application filed by leave on 21 July 2008, pursuant to UCPR 293.
3.  Order that the plaintiff pay the defendants’ costs of both applications, to be assessed on the indemnity basis.

CATCHWORDS:

CORPORATIONS LAW – 601AH CORPORATIONS ACT 2001 – where plaintiff seeks reinstatement of the company - whether the plaintiff was the person aggrieved by the deregistration – whether any good will come from the company’s reinstatement – whether the defendants would be prejudiced should the reinstatement occur

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT –JUDGMENT – where the defendants have applied for judgment under r 293 Uniform Civil Procedure Rules

Legislation

Corporations Act 2001, s 601AH

Criminal Code Act 1899, s 408C, s 438, s 441 and s 442D

Trade Practices Act 1974

Uniform Civil Procedure Rules 1999 (Qld), r 293, 171, 377, 397

Cases

Derry v Peek (1880) 14 App Cas 337, cited

COUNSEL:

Plaintiff in person
Mr P Freeburn SC for the defendants

SOLICITORS:

James Conomos Lawyers for the defendants

1. The plaintiff was

   for some time the sole director and majority shareholder of

   
   

   L.O.A. Industries Pty Ltd (‘the company’). It owned and carried on three businesses:  The Electric Sign Company, Salisbury Secretarial Services and All You Want Sign Shop.  Its business was modest but by the end of 1996 it was admittedly insolvent.  On 24 December 1996 the plaintiff appointed two of the defendants, Messrs Worrell and Khatri, administrators of the company.  On 18 February 1997 the creditors of the company appointed those defendants as administrators pursuant to a Deed of Company Arrangement.  At a meeting of creditors held on

   
   

   5 December 1997 a majority in number of creditors voted to continue the administration while a majority in value voted in favour of liquidation.  The administrators cast their deciding vote in favour of liquidation.

1. The winding up produced nothing of benefit.  No dividend was paid to creditors.  The assets of the businesses, such as they were, were sold to the plaintiff for $4,500.  He thereafter, apparently, continued to carry on those businesses which were unsuccessful. 

1. The company was deregistered on 11 November 1998.   

1. On 17 June 2004 the plaintiff issued proceedings out of the Townsville Registry of the Supreme Court claiming $805,819 damages against the defendants.  Mr Lane who appears to have had little to do with the administration or liquidation of the company is sued on the basis that he was a partner with the other defendants in the firm Worrell Whitehill.