McGinn v Carrathool Hotel Pty Ltd

[2008] NSWSC 197

CITATION:	McGinn v Carrathool Hotel Pty Ltd [2008] NSWSC 197
HEARING DATE(S):	3 March 2008
JUDGMENT DATE :	3 March 2008
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Defendant wound up. Wagga Wagga liquidators appointed.
CATCHWORDS:	CORPORATIONS [1508] – Winding up – Other grounds for winding up – Just and equitable – Impossibility of effectively carrying on business – Relationship between only two directors and shareholders suffered irretrievable breakdown.
CATEGORY:	Principal judgment
PARTIES:	John Kerry McGinn (P) Carrathool Hotel Pty Limited (D) Barbara Ann Heckendorf (Person served)
FILE NUMBER(S):	SC 1065/08
COUNSEL:	A E Maroya (P) No appearance (D) G A Elliott (Person served)
SOLICITORS:	Creagh Lisle (P) Unrepresented (D) Campbell Paton & Taylor (Person served)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

MONDAY, 3 MARCH 2008

1065/08 JOHN KERRY McGINN v CARRATHOOL HOTEL PTY LIMITED

JUDGMENT

1 HIS HONOUR: This is an application for the winding up of the defendant company on the just and equitable ground. Before the Court are counsel for the plaintiff and counsel for Barbara Ann Heckendorf (also known as McGinn). They were previously husband and wife. They were the only directors and the only shareholders of the defendant’s company.

2 The plaintiff has proved by affidavit evidence that both the personal and the business relationships between the plaintiff and defendant have been terminated. There is such hostility between them that, at one stage, an AVO was made. It is quite clear that a business relationship cannot be conducted between them. Furthermore, the hotel which was conducted by the defendant company has been closed and the defendant no longer has any interest in it. The remaining asset of the company is a cottage that it purchased in Carrathool.

3 Ms Heckendorf has denied certain of the allegations made against her by the plaintiff. By agreement, the portions of the affidavit that made those allegations have not been read on the plaintiff’s behalf. However, the balance of the affidavit that has been read shows the situation that I have set out above and leads me to form the opinion that it is just and equitable that the company be wound up. I propose to wind it up on that ground.

4 The name of a liquidator nominated in the Registry is stamped on the originating process. However, the consent of that liquidator is not available, so that an order could not be made today for his appointment as the liquidator of the company. He is a Sydney liquidator. The plaintiff proffered to the Registry on filing the originating process the consent of two official liquidators from the same firm in Wagga Wagga. They consent to appointment and certify that they are not aware of any conflict of interest.

5 The plaintiff is desirous of having them appointed because Wagga Wagga is closer to Carrathool than is Sydney. Counsel for Ms Heckendorf has taken her instructions. Those instructions are that she does not object to the appointment of the Wagga Wagga liquidators and recognises the advantage of their proximity. I therefore intend to appoint them as the liquidators of the company.

**********