Kendell v Sweeney

[2002] QSC 404

SUPREME COURT OF QUEENSLAND

CITATION:

Kendell v Sweeney & Ors [2002] QSC 404

PARTIES:

DAVID WARD KENDELL (as Trustee of the WGK Trust)
(applicant)
v
PAUL DESMOND SWEENEY and TERRY GRANT van der VELDE (Liquidators)
(first respondents)
JENI KENDELL
(second respondent)
SUSAN DONE
(third respondent)
PENNY NELSON
(fourth respondent)

FILE NO:

S 8347 of 2002

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

22 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

15 November 2002

JUDGE:

Wilson J

ORDER:

1.   That the application filed on 24 October 2002 (amended in accordance with the amended application filed by leave on 15 November 2002) be dismissed.

2.   That the applicant pay the first respondents’ costs of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

CORPORATIONS – WINDING UP VOLUNTARILY – CONTRIBUTORIES – where company went into liquidation after members’ voluntary winding up – where applicant seeks a list of contributories pursuant to s 506(1)(c) Corporations Act 2001 – where all shares in the company are fully paid up – whether it is necessary to “adjust the rights of the contributories among themselves” within the meaning of s 515(b) Corporations Act 2001 – where the applicant wants to obtain a list of shareholders so he can join all necessary parties to the originating application – whether the liquidators should be ordered to provide a list of contributories in accordance with ss 506 and 478 Corporations Act 2001

PROCEDURE – SUPREME COURT PROCEDURE – where applicant seeks orders for substituted service on three shareholders – where applicant has not tried to serve the shareholders in the usual way – where applicant proposes service be effected by sending copies of the filed documents to the liquidators – whether it is impracticable for applicant to serve documents in the way required by chapter 4 of the UCPR – whether the circumstances justify an order for
substituted service

Corporations Act 2001 (Cth), s 478(1), s 478(1A), s 506(1)(c), s 515, s 516
Uniform Civil Procedure Rules 1999 (Qld), r 26(2), r 116

Phoenix Oil and Transport Co Ltd [1958] 1 Ch 560

COUNSEL:

The applicant appeared on his own behalf
J B Sweeney for the first respondent

SOLICITORS:

The applicant appeared on his own behalf
Primrose Couper Cronin Rudkin for the first respondent

1. WILSON J: The applicant is the trustee of the WGK Trust. The Trust holds shares in Kendells (NSW) Pty Limited (“the company”).

1. The company is in liquidation. It is a members’ voluntary winding up.

1. By an originating application filed on 10 September 2002 the applicant seeks -

“declaration that on its proper construction the Settlement Deed dated 14 October 1998 between the Company and Australian Vineyard Estates Pty Ltd did not have the effect of writing off or otherwise disposing of the loan accounts of the Company’s shareholders”

and consequential orders.

1. This is an interlocutory application by which the applicant seeks –

   
   
   

(i) an order that the liquidators prepare a list of contributories pursuant to…