Hume v Carey [No 2] - [2022] WASC 377

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   HUME -v- CAREY [No 2] [2022] WASC 377
CORAM:   HILL J
HEARD:   1 NOVEMBER 2022
DELIVERED          :   1 NOVEMBER 2022
PUBLISHED           :   4 NOVEMBER 2022
FILE NO/S:   COR 68 of 2022
BETWEEN:   ALISTAIR DAVID HUME
Plaintiff

AND

NORMAN PHILLIP CAREY
First Defendant

GOLDBLAZE NOMINEES PTY LTD
Second Defendant

HHA ARCHITECTS PTY LTD (IN LIQ)
Third Defendant

Catchwords:

Corporations - Application to terminate winding up of company - Remuneration of liquidators - Liability to pay liquidators' reasonable remuneration - Costs of application - Turns on own facts

Legislation:

Corporations Act 2001 (Cth) s 482, s 556

Insolvency Practice Schedule 2016 (Corporations) (Cth), s 60-5

Result:

Stay of winding up

On payment by plaintiff of remuneration of liquidators, winding up of third defendant is terminated
If payment is not made, stay will be lifted and application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
First Defendant	:	S M Radovanovic
Second Defendant	:	S M Radovanovic
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	In Person
First Defendant	:	Mony De Kerloy
Second Defendant	:	Mony De Kerloy
Third Defendant	:	No appearance

Cases referred to in decision:

El-Fahkri v Elfah Pty Ltd (in liq) [2002] FCA 1469
Nationwide News Pty Ltd v Samalot Enterprises Pty Ltd (No 2) (1896) 5 NSWLR 227

HILL J:

(This judgment was delivered ex temporaneously and has been edited from the transcript.)

On 5 August 2022, I delivered reasons for my decision on the application of the plaintiff, Mr Hume, to terminate the winding up of the third defendant, HHA Architects Pty Ltd (in liquidation) (HHA). In those reasons, I indicated that I was satisfied that HHA had been wound up in circumstances that it should not have been, and that this weighed very heavily in favour of granting the application of the plaintiff.
The primary outstanding question at that stage was the question of the costs of the liquidation, both as to the amount of the costs of the liquidators and who should be liable to pay these costs.
On that date, I stayed the winding up until further order. As I indicated on that date, in the event that I considered the plaintiff should be liable for some or all of the liquidators' costs, if these costs could be secured or paid, the winding up would be terminated. If the plaintiff was unable to do this, the stay would be lifted and HHA will remain in liquidation.
The matter came back before me for directions on 4 October 2022. At that time, I adjourned the application for four weeks. The primary reason for this was that at that time, I had received a report from the liquidators in response to a query from the court. The remuneration report that was provided to my chambers by email and provided to the parties stated that the total remuneration sought by the liquidators was $65,273. It also indicated that an amount of $31,800.50 had previously…

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 [No 2]

Details

AGLC: Hume v Carey [No 2] [2022] WASC 377
Case: [2022] WASC 377
Decision Date: 4 NOVEMBER 2022

CaseChat Overview and Summary

The applicants, Hume and others, sought to terminate the winding up of a company, while the respondent, Carey, the liquidator, opposed the application. The applicants argued that the winding up should be terminated as the company's debts had been paid, and there was no longer any benefit in continuing the process. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the applicants had a right to terminate the winding up of the company. The court had to consider whether the applicants had discharged their debts, and if the winding up should continue despite the payment of those debts. Another significant issue was the liability for the liquidators' reasonable remuneration and the costs of the application. The court needed to determine whether the applicants were liable for these costs and if the liquidators were entitled to their remuneration.

The court found that the applicants had discharged their debts, and there was no longer any benefit in continuing the winding up. Consequently, the court granted the application to terminate the winding up. The court also held that the applicants were liable for the liquidators' reasonable remuneration and the costs of the application. The court emphasised that the liability for the liquidators' remuneration and the costs of the application turned on the specific facts of the case.

The final orders of the court were that the winding up of the company be terminated, and the applicants were liable for the liquidators' reasonable remuneration and the costs of the application. The court's decision was based on the specific facts of the case, and the liability for the remuneration and costs was determined accordingly.

Orders