Lucky v Ives (Winding Up Application)

[2024] FCA 1501

FEDERAL COURT OF AUSTRALIA

Lucky v Ives (Winding Up Application) [2024] FCA 1501

File number:

NSD 1147 of 2024

Judgment of:

JACKMAN J

Date of judgment:

18 December 2024

Catchwords:

COSTS – application for indemnity costs – where applicants sought orders that company be wound up on the just and equitable ground – where it is agreed between the parties that the originating process should be dismissed – where respondents opposition to the winding up was baseless – where first respondent resigned as a director on the afternoon before the hearing – where application for winding up rendered moot upon the making of certain representations by the first respondent’s counsel – indemnity costs awarded

Legislation:

Corporations Act 2001 (Cth) s 461(1)(k)

Cases cited:

Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194

Chapman v Luminis Pty Ltd [2003] FCAFC 162

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225

In the matter of Amazon Pest Control Pty Ltd [2012] NSWSC 1568

Lamond No 2 [2017] FCA 548

Mead v Watson (as Liquidator for Hypec Electronics) [2005] NSWCA 133; (2005) 23 ACLC 718

ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 171 ALR 227

Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622

Ruut v Head (1996) 20 ACSR 160

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Number of paragraphs:

16

Date of hearing:

18 December 2024

Counsel for the Applicants:

Mr T O’Brien and Mr H Rogers

Solicitor for the Applicants:

Polczynski Robinson

Counsel for the Respondents:

Mr M Rennie

Solicitor for the Respondents:

Johnson Winter Slattery

ORDERS

NSD 1147 of 2024

BETWEEN:

UTAARIKI MAVE LUCKY

First Applicant

LUTA INVESTMENTS PTY LTD (ACN 163 981 860)

Second Applicant

AND:

BEN IVES

First Respondent

CHIEF TRADE CREDIT INSURANCE PTY LTD

Second Respondent

BENIVES ASSET MANAGEMENT PTY LTD (ACN 139 308 375)

Third Respondent

ORDER MADE BY:	JACKMAN J
DATE OF ORDER:	18 DECEMBER 2024

THE COURT ORDERS THAT:

1.The originating process be dismissed.

2.Subject to the orders for costs made to date in the proceedings, the first and third respondents pay the costs of the proceedings on an indemnity basis.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
Delivered ex tempore, revised from transcript

JACKMAN J:

1. The first applicant and the first respondent, Mr Lucky and Mr Ives, have been the directors of the second respondent, Chief Trade Credit Pty Ltd (Chief), and the controlling minds of its two 50 per cent shareholders, the second applicant and the third respondent. The second applicant, Luta Investments Pty Ltd, seeks in these proceedings an order under s 461(1)(k) of the Corporations Act 2001 (Cth) (the Act) for Chief to be wound up on the just and equitable ground.

2. The evidence in support, which has been served by the applicants, shows that…