Hume v Carey - [2023] WASCA 138

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HUME -v- CAREY [2023] WASCA 138
CORAM:   HALL JA
MULLINS AJA
SEAWARD J

HEARD:   22 SEPTEMBER 2023
DELIVERED          :   Ex tempore
FILE NO/S:   CACV 109 of 2022
BETWEEN:   ALISTAIR DAVID HUME
Appellant

AND

NORMAN PHILLIP CAREY
First Respondent

GOLDBLAZE NOMINEES PTY LTD
Second Respondent

HHA ARCHITECTS PTY LTD (IN LIQ)
Third Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   HILL J
Citation: HUME -v- CAREY [No 2] [2022] WASC 377
File Number            :   COR 68 of 2022

Catchwords:

Corporations - Appeal against order making the termination of the winding up of a company conditional on the sole shareholder paying a fixed amount of the liquidators' fees - Where the applicants for the winding up order had brought negligence proceedings against the company that were disputed by the company - Where primary judge found that winding up order should never have been made - Whether the primary judge erred in making the termination of the winding up dependent on the payment of the liquidators' fees by the party who sought the termination order

Legislation:

Corporations Act 2001 (Cth), s 461(1)(k), s 462(4), s 482, 556(1)(a)
Insolvency Practice Schedule (Corporations) (Cth), s 60-5

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
First Respondent	:	No Appearance
Second Respondent	:	No Appearance
Third Respondent	:	No Appearance

Solicitors:

Appellant	:	In Person
First Respondent	:	No Appearance
Second Respondent	:	No Appearance
Third Respondent	:	No Appearance

Case(s) referred to in decision(s):

Goldblaze Nominees Pty Ltd as Trustee for the Goldblaze Unit Trust v HHA Architects Pty Ltd [2021] WASC 189
Hume v Carey [2022] WASC 256
Hume v Carey [No 2] [2022] WASC 377

HALL JA:

(These reasons were delivered extemporaneously on 22 September 2023 and have been edited from the transcript.)

I agree with Mullins AJA.

MULLINS AJA:

The appellant, Mr Hume, appears in person to appeal against the orders made by the learned primary judge on 1 November 2022 on Mr Hume's application to terminate the winding up of the third respondent HHA Architects Pty Ltd (in liq) (the company): Hume v Carey [No 2] [2022] WASC 377 (the reasons). The orders made on that date were:

1.Subject to the Plaintiff paying or securing the liquidators' fees to the sum of $20,000 (excl GST) by payment of $10,000 (plus GST) by 16 January 2023 and a further payment of $10,000 (plus GST) by 16 March 2023, the winding up of HHA Architects Pty Ltd (In Liq) will be terminated.
2.If the plaintiff is unable to pay or secure the liquidators' fees in terms of order 1, the stay will be lifted and the company will remain in liquidation.
3.There be no order as to the costs of the application.
4.There be liberty to apply on 7 days' written notice.

No respondent has participated in this appeal.

Background

The company was wound up on the…

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 Hume v Carey

Details

AGLC: Hume v Carey [2023] WASCA 138
Case: [2023] WASCA 138
Decision Date: 22 SEPTEMBER 2023

CaseChat Overview and Summary

In the case of Hume v Carey, the respondents, who were the liquidators of a company, sought an order terminating the winding up of the company, contingent upon the sole shareholder, Hume, paying a fixed amount of the liquidators' fees. The liquidators argued that the winding up order should not be terminated without Hume contributing to the costs of the liquidation, as they had incurred substantial expenses in pursuing negligence claims against the company that were disputed by the company. Hume, on the other hand, contended that the winding up order should be terminated without any contribution from him to the liquidators' fees, asserting that the order should never have been made in the first place. The primary judge ruled that the winding up order should not have been made and ordered the termination of the winding up, subject to Hume paying a portion of the liquidators' fees. Hume appealed against the order, arguing that the primary judge erred in making the termination of the winding up dependent on the payment of the liquidators' fees.

The key legal issue before the court was whether the primary judge was correct in imposing a condition on the termination of the winding up of the company, requiring Hume to contribute to the liquidators' fees. The court had to consider the principles governing the winding up of a company, the discretion of the court in making orders, and the appropriate circumstances in which a winding up order may be terminated. The court also needed to assess whether the primary judge's decision was consistent with the relevant statutory provisions and case law.

The court held that the primary judge did not err in making the termination of the winding up dependent on Hume paying a portion of the liquidators' fees. The court found that the primary judge was entitled to conclude that the winding up order should not have been made, and that the liquidators' costs should not be borne solely by Hume. The court further determined that the primary judge's order was consistent with the relevant statutory provisions and case law, and that the condition imposed on the termination of the winding up was not an abuse of the court's discretion. The court held that the primary judge had the authority to make the order, and that the order was in the interests of justice.

The final orders of the court were that Hume's appeal against the primary judge's order was dismissed, and that the winding up of the company would terminate upon Hume paying a fixed amount of the liquidators' fees. The court found that the primary judge's order was appropriate in the circumstances and that the condition imposed on the termination of the winding up was reasonable and just. The court emphasised that the primary judge had the discretion to make the order, and that the order was in the best interests of all parties involved in the winding up of the company.

Orders