KIMPURA PTY LTD -v- WALTER & ORS [2002] WASC 166

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 166
Case No:	COR:176/2002	Heard:	18 JUNE 2002
Coram:	WHEELER J	Delivered:	27/06/02
No of pages:	11	Judgment Part:	1 of 1
Result:	Application for interim orders refused
Category:	B
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Parties:	KIMPURA PTY LTD (ACN 006 048 479) JULIAN ALAN WALTER JULIAN WALTER HOLDINGS PTY LTD (ACN 008 872 357) J-CORP PTY LTD (ACN 009 063 076)
Catchwords:	Corporations Winding up Appointment of Provisional Liquidator Appointment of investigator Turns on own facts Corporations Directors Disclosure to shareholders Administration of Employee Discount Scheme
Legislation:	Corporations Act, s 236
Case References:	Boral Resources (WA) Ltd v Innovative Precast Systems Pty Ltd (1998) 16 ACLC 1570 Alati v Wei Sheung (2000) 34 ACSR 489 H & G Group v Pilot Developments [2002] NSWSC 257 Miller v Scorey [1996] 3 All ER 13 State of South Australia & Anor v Barrett & Ors (1995) 13 ACLC 1,369

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : KIMPURA PTY LTD -v- WALTER & ORS [2002] WASC 166 CORAM : WHEELER J HEARD : 18 JUNE 2002 DELIVERED : 27 JUNE 2002 FILE NO/S : COR 176 of 2002 MATTER : J-CORP PTY LTD (ACN 009 063 076) BETWEEN : KIMPURA PTY LTD (ACN 006 048 479)

Plaintiff

AND

JULIAN ALAN WALTER

First Defendant

JULIAN WALTER HOLDINGS PTY LTD (ACN 008 872 357)

Second Defendant

J-CORP PTY LTD (ACN 009 063 076)

Third Defendant

Catchwords:

Corporations - Winding up - Appointment of Provisional Liquidator - Appointment of investigator - Turns on own facts

Corporations - Directors - Disclosure to shareholders - Administration of Employee Discount Scheme

(Page 2)

Legislation:

Corporations Act, s 236

Result:

Application for interim orders refused

Category: B

Representation:

Counsel:

Plaintiff : Mr C L Zelestis QC & Mr B D Luscombe

First Defendant : Mr J Gilmour QC & Mr M D Howard

Second Defendant : Mr J Gilmour QC & Mr M D Howard

Third Defendant : No appearance

Solicitors:

Plaintiff : Mallesons Stephen Jaques

First Defendant : Clayton Utz

Second Defendant : Clayton Utz

Third Defendant : No appearance

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

Boral Resources (WA) Ltd v Innovative Precast Systems Pty Ltd (1998) 16 ACLC 1570

Case(s) also cited:

Alati v Wei Sheung (2000) 34 ACSR 489
H & G Group v Pilot Developments [2002] NSWSC 257
Miller v Scorey [1996] 3 All ER 13
State of South Australia & Anor v Barrett & Ors (1995) 13 ACLC 1,369
(Page 3)

Portions of this judgment have been suppressed pursuant to orders made by this Court on 27 June 2002, as amended.

WHEELER J:

The application

1 By an originating process dated 14 June 2002, the plaintiff seeks orders winding up the third defendant, the appointment of a Liquidator, and leave to issue proceedings under s 236 of the Corporations Act in the name of the company against the first defendant, Mr Walter.…

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 Kimpura Pty Ltd v Walter

Details

AGLC: Kimpura Pty Ltd v Walter [2002] WASC 166
Case: [2002] WASC 166
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia heard an application by Kimpura Pty Ltd, a shareholder of J-Corp Pty Ltd, for interim orders to wind up J-Corp, appoint a liquidator and an investigator. Kimpura sought these orders based on alleged mismanagement and misappropriation by J-Corp's managing director, Julian Walter. The defendants, Julian Walter and Julian Walter Holdings, opposed the application, arguing it was an abuse of process and that the relief sought was disproportionate. The court found that while there were some merits to the defendants' argument that the application was an abuse of process, it was not necessary to determine this issue at the interim stage. The court then considered whether interim relief should be granted. The plaintiff's case was based on an alleged breakdown in trust between the parties and concerns about the administration of an employee discount scheme. However, the court found that the plaintiff had not demonstrated a serious question to be tried or that the relief sought was warranted based on the evidence available. The potential harm to employees, sub-contractors and homeowners if the company's operations were unduly restricted outweighed any potential benefits of the interim orders. The application for interim relief was therefore refused.

Orders