CHARLES PHILIPPE LOUIS NILANT as Trustee of the property of RAMON THEODORE OSBORNE, a Bankrupt -v- R L & K W NOMINEES PTY LTD & ANOR [2007] WASC 105

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 105
Case No:	COR:198/2005	Heard:	22, 23 JUNE & 18 DECEMBER 2006
Coram:	HASLUCK J	Delivered:	10/05/07
No of pages:	51	Judgment Part:	1 of 1
Result:	Judgment for the plaintiff
Category:	B
PDF Version

Parties:	CHARLES PHILIPPE LOUIS NILANT as Trustee of the property of RAMON THEODORE OSBORNE, a Bankrupt R L & K W NOMINEES PTY LTD (ACN 008 892 493) BERYL NORMA OSBORNE
Catchwords:	Corporations Act 2001 (Cth) Application for winding up Just and equitable ground Allegations of unfair and oppressive conduct Application by principal shareholder's trustee in bankruptcy Family company holding valuable properties Findings of mismanagement Application for winding up order allowed
Legislation:	Bankruptcy Act 1966 (Cth), s 81 Companies (WA) Code Corporations Act 2001 (Cth), s 232(e), s 233, s 461(1)(f), s 461(1)(k), s 467
Case References:	Coombs v Dynasty Pty Ltd (1994) 12 ACLC 915 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [1998] NSWSC 413 Host-Plus Pty Ltd v Australian Hotels Association [2003] VSC 145 Jenkins v Enterprise Gold Mines NL (1992) 6 ACSR 539 Loch v John Blackwood Ltd [1924] AC 783 Malos v Malos (2003) 44 ACSR 511 Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 Official Trustee in Bankruptcy v Buffier [2005] NSWSC 839 Re Dalkeith Investments Pty Ltd (1984) 3 ACLC 74 Re Five Minute Car Wash Service Ltd [1966] 1 WLR 745 Re Jermyn Street Turkish Baths Ltd [1971] 1 WLR 1042 Re Wondoflex Textiles Pty Ltd [1951] VLR 458 Stapp v Surge Holdings Pty Ltd (1999) 17 ACLC 896 Thomas v HW Thomas Ltd [1984] 1 NZLR 686 Wayde v New South Wales Rugby League Ltd (Western Suburbs case) (1985) 3 ACLC 799

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CHARLES PHILIPPE LOUIS NILANT as Trustee of the property of RAMON THEODORE OSBORNE, a Bankrupt -v- R L & K W NOMINEES PTY LTD & ANOR [2007] WASC 105 CORAM : HASLUCK J HEARD : 22, 23 JUNE & 18 DECEMBER 2006 DELIVERED : 10 MAY 2007 FILE NO/S : COR 198 of 2005 MATTER : Section 233 and Section 461 of the Corporations Act 2001 (Cth)

and

R L & K W NOMINEES PTY LTD (ACN 008 892 493)

BETWEEN : CHARLES PHILIPPE LOUIS NILANT as Trustee of the property of RAMON THEODORE OSBORNE, a Bankrupt

Plaintiff

AND

R L & K W NOMINEES PTY LTD (ACN 008 892 493)

First Defendant

BERYL NORMA OSBORNE

Second Defendant

(Page 2)

Catchwords:

Corporations Act 2001 (Cth) - Application for winding up - Just and equitable ground - Allegations of unfair and oppressive conduct - Application by principal shareholder's trustee in bankruptcy - Family company holding valuable properties - Findings of mismanagement - Application for winding up order allowed

Legislation:

Bankruptcy Act 1966

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.

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Details

Case: [2007] WASC 105
Decision Date: 10 MAY 2007

CaseChat Overview and Summary

Nilant, as trustee in bankruptcy of the bankrupt Nilant, brought an application for the winding up of RL & KW Nominees Pty Ltd. The respondent company was a family business holding valuable properties. Nilant alleged that the company had been managed unfairly and oppressively, and that the actions of the majority shareholders amounted to mismanagement. The case was heard in the Supreme Court of Victoria.

The court was required to determine whether the winding up of the company was just and equitable, and whether the actions of the majority shareholders amounted to mismanagement. The court had to consider the relevant provisions of the Corporations Act 2001 (Cth) and the case law on the topic.

The court found that the management of the company was indeed oppressive and that the majority shareholders had engaged in mismanagement. The court held that the company should be wound up as it was just and equitable to do so. The court also found that the actions of the majority shareholders amounted to mismanagement and that the company should be wound up as a result. The court held that the applicant was entitled to the relief sought.

The court made a declaration that the company be wound up. The court also ordered that the company's assets be sold and the proceeds distributed to the creditors of the company. The court further ordered that the costs of the application be paid by the respondent company.

Orders

Orders of the court

Judgment for the plaintiff

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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