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Jankar v Dellmain

Jankar v Dellmain

Case [2009] NSWSC 766 4 September 2009

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CITATION: Jankar v Dellmain & Ors [2009] NSWSC 766

HEARING DATE(S): 3 June 2009

JUDGMENT DATE :
4 September 2009

JURISDICTION: Equity

JUDGMENT OF: Slattery J at 1

DECISION: Orders:
(1) The third defendant pay the plaintiff's costs of the interlocutory process and the proceedings.
(2) The third defendant pay the first defendant's costs of the interlocutory process and of the proceedings on an indemnity basis.

CATCHWORDS: CORPORATIONS - winding up - application for winding up by court - winding up conceded on the just and equitable basis under s 461(1)(k) Corporations Act 2001 - winding up would have been justified under s 461(1)(e) Corporations Act 2001 had it been fully contested - a winding up under s 461(1)(f) Corporations Act 2001 would also have been justified - third defendant engages in oppressive conduct - third defendant unreasonably causes the first defendant defend the proceedings - COSTS - an order that the third defendant pay the plaintiff's costs - an order that the third defendant indemnify the first defendant in respect of its defence costs

LEGISLATION CITED: Corporations Act 2001
Civil Procedure Act 2005

CATEGORY: Principal judgment

CASES CITED: Ali v Nationwide News Pty Limited [2008] NSWSC 183
Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194
Australian Securities Commission v Multiple Sclerosis Society (Tas) (1993) 10 ACSR 489
Baillieu Knight Frank (NSW) v Ted Manny Real Estate Pty Limited (1992) 30 NSWLR 359
Booker v You Run the Business (2008) FCA 1672
Cassegrain & Anor v CTK Engineering Pty Limited & Anor [2005] NSWSC 495
Consolidated Byrnes Holdings Limited v Hardel Investments Pty Limited (2009) FCA 399
Degman Pty Limted (in liquidation) v Wright (1983) 2 NSWLR 354
Ebrahimi v Westbourne Galleries Limited (1973 ) AC 360
Harrison v Schipp; Cameron v Schipp [2001] NSWCA 13
HSH Hotels (Australia) Limited v Multiplex Constructions Pty Limited [2004] NSWCA 302
Hypec Electronics Pty Limited (in liquidation) v Mead (2004) 61 NSWLR 169
In Re Wilcox; Venture Industries Pty Limited (No 2) (1996) 72 FCR 151
Johnny Ocean’s Restaurant v Page (2003) NSWSC 952
Kinsella v Russell Kinsella Pty Limited (1986) 10 ACLR 395
Latoudis v Casey (1990) 170 CLR 54
Morgan v 45 Flers Avenue Pty Limited (1986) 10 ACLR 692
NMFM Property Pty Limited v Citibank (No 2) (2001) 109 FCR 77
Ohn v Walton (1995) 36 NSWLR 77
Oshlack v Richmond River Council (1998) 93 CLR 72
Quinlan v Essex Hinge Co Limited [1996] 2 BCLC 417
Re Back 2 Bay 6 Pty Limited (1994) 12 ACSR 614
Re Fountain Selected Meats (1988) 81 ALR 397
Re Minister for Immigration and Ethnic Affairs; Ex parte Re Kim Li Qin [1997] HCA 6; (1997) 143 ALR 1; (1997) 186 CLR 622
Re Struthers; Paci Pty Limted (In liquidation) (2005) 64 NSWLR 392
Ruhani v Director of Police (2005) 222 CLR 489
Shum Yip Properties Development Limited v Chatswood Investment & Development Co Pty Limited (2002) 40 ACSR 619

PARTIES: J & M Jankar Pty Limited (Plaintiff)

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 Jankar v Dellmain

Details

AGLC: Jankar v Dellmain [2009] NSWSC 766
Case: [2009] NSWSC 766
Decision Date: 4 September 2009

CaseChat Overview and Summary

In the case of Jankar v Dellmain, the applicant, Jankar, sought an order for the winding up of a corporation, Dellmain, on the basis that it was just and equitable to do so, pursuant to section 461(1)(k) of the Corporations Act 2001. The corporation was owned by three defendants, the first and third of whom were the subject of the applicant's claim. The applicant alleged that the third defendant engaged in oppressive conduct and unreasonably caused the first defendant to defend the proceedings. The third defendant conceded that the winding up of the corporation was just and equitable. The court was required to determine whether a winding up order should be made and, if so, the basis on which it should be made. The court was also required to determine whether an order for costs should be made and, if so, the basis on which it should be made.

The court found that the winding up of the corporation was just and equitable and that it would have been justified on the basis that the corporation was unable to pay its debts. The court also found that the winding up of the corporation would have been justified on the basis that the conduct of the third defendant was oppressive and unfairly prejudicial to the applicant. The court found that the third defendant engaged in oppressive conduct by unreasonably causing the first defendant to defend the proceedings. The court held that the third defendant should indemnify the first defendant in respect of its defence costs and that the third defendant should pay the applicant's costs.

The court made an order that the corporation be wound up on the just and equitable basis. The court also made an order that the third defendant indemnify the first defendant in respect of its defence costs. The court further made an order that the third defendant pay the applicant's costs. The court held that the first defendant was not liable for any of the costs.

Orders