Maertin v Klaus Maertin Pty Ltd - [2006] NSWSC 588

Reported Decision:
57 ACSR 714
(2006) 24 ACLC 676

New South Wales

Supreme Court

CITATION: Maertin v Klaus Maertin Pty Ltd & Ors [2006] NSWSC 588
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 06/06/06

JUDGMENT DATE :
14 June 2006

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Order for appointment of provisional liquidator. Short stay granted.

CATCHWORDS: CORPORATIONS - winding up - standing - plaintiff is transferee under unregistered transfer from executor of deceased shareholder - whether "contributory" as defined by s.9 - whether within concluding sentence of s.232 as regards claim based on Part 2F.1 - whether s.232 standing can be relied upon where claims advanced principally under s.461 - whether plaintiff "creditor" - admission by defendant company that money owed by it to him - assertion that he and another jointly indebted to company in a greater sum - assuming such indebtedness to be joint, whether set-off deprives plaintiff of creditor status - application for appointment of provisional liquidator - whether cogent case for winding up shown - whether assets in jeopardy - balance of convenience considered - whether position pending trial may be secured by orders or undertakings

LEGISLATION CITED: Corporations Act 2001 (Cth), ss.9, 231, 232, 233, 234(a), 461(1)(e), 461(1)(f), 461(1)(k), 462(2)(b), 462(2)(c), 472(2), 1071B, 1072E, Part 2F.1

CASES CITED: Manzo v 555/255 Pitt Street Pty Ltd (1990) 21 NSWLR 1
Re ABT Holdings Pty Ltd (1979) 4 ACLR 41
Re A Company [1894] 2 Ch 349
Re Bright Pine Bills Pty Ltd [1969] VR 1002
Re Exclusive Master Book-binding & Manufacturing Pty Limited (1977) 2 ACLR 549
Re Gattopardo Ltd [1969] 2 All ER 344
Re Meyer Douglas Ltd [1965] VR 638
Re Steel Wing Company Ltd [1921] 1 Ch 349
Rohan Trading Company Pty Ltd v Glengor Pastoral Company Pty Ltd [2003] NSWSC 1265
Russell v Scott (1936) 55 CLR 440

PARTIES: Philip Helmut Maertin - Plaintiff
Klaus Maertin Pty Limited - First Defendant
Simon James Singer - Second Defendant
Helmut Maertin - Third Defendant
Sabine Maertin - Fourth Defendant

FILE NUMBER(S): SC 2289/06

COUNSEL: Mr P. Hallen SC - Plaintiff
Mr M.R. Lawson - First, Third and Fourth Defendants
Mr M.S. Willmott SC - Second Defendant

SOLICITORS: Uther Webster & Evans - Plaintiff
Conaghan Hunter - First, Third and Fourth Defendants
David Landa Stewart - Second Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

WEDNESDAY 14 JUNE 2006

2289/06 PHILIP HELMUT MAERTIN v KLAUS MAERTIN PTY LIMITED & 3 ORS

JUDGMENT

1 By an originating process filed on 10 April 2006, the plaintiff seeks an order that the first defendant, Klaus Maertin Pty Limited, be wound up. I shall refer to the first defendant as “the company”. The originating process as originally filed stated that the application was made under ss.461(1)(e), 461(1)(f) and 461(1)(k) of the Corporations Act 2001 (Cth).

2 By an interlocutory process also filed on 10…

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.

Keep reading for free

Create a free CaseChat account to read Maertin v Klaus Maertin Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWSC 588
Decision Date: 14 June 2006

CaseChat Overview and Summary

Maertin v Klaus Maertin Pty Ltd involved a dispute regarding the winding up of a company. The plaintiff, Maertin, claimed to be the transferee of shares under an unregistered transfer from the executor of a deceased shareholder. The defendant, Klaus Maertin Pty Ltd, contested Maertin's standing to apply for the winding up of the company, arguing that he was not a "creditor" as defined by the Corporations Act and did not meet the requirements of section 232. The case was heard in the Federal Court of Australia.

The legal issues before the court included whether Maertin was a "contributory" within the meaning of section 9 of the Corporations Act, whether he was within the concluding sentence of section 232 concerning claims based on Part 2F.1, and whether section 232 standing could be relied upon when the claims were principally advanced under section 461. Additionally, the court had to determine whether Maertin's status as a creditor was negated by the assertion that he and another were jointly indebted to the company in a greater sum, and whether set-off would deprive him of creditor status.

The court found that Maertin was not a "contributory" and did not fall within the concluding sentence of section 232. However, it held that section 232 standing could be relied upon even where claims were principally advanced under section 461. Maertin was considered a creditor, despite owing a debt to the company, as the debt was lesser than the amount owed by the company to him. The court also determined that the set-off did not deprive Maertin of creditor status. The application for the appointment of a provisional liquidator was dismissed, as the court found that a cogent case for winding up had not been shown, and the balance of convenience favoured securing the position pending trial by orders or undertakings.

Orders