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Pellarini v Bicher & Son Pty Ltd

Pellarini v Bicher & Son Pty Ltd

Case [2024] NSWSC 223 7 March 2024

Discovery & Disclosure

Winding Up & Liquidation

Civil Litigation & Procedure

Corporate Law & Governance

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Supreme Court

New South Wales

Medium Neutral Citation: Pellarini v Bicher & Son Pty Ltd [2024] NSWSC 223
Hearing dates: 20 February 2024
Date of orders: 07 March 2024
Decision date: 07 March 2024
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) The summons is dismissed.
(2) The plaintiff is to pay the defendant’s costs.

Catchwords:
CIVIL PROCEDURE — Preliminary discovery — whether plaintiff may have a claim for relief – where plaintiff asserted the defendant company may have failed to comply with its taxation obligations – whether, if established, asserted failures capable of justifying winding up of the defendant company

Legislation Cited:
Corporations Act 2001 (Cth), ss 232, 421, 461
Uniform Civil Procedure Rules 2005 (NSW), r 5.3

Cases Cited:
In the matter of Bicher & Son Pty Ltd [2020] NSWSC 711
In the matter of Bicher & Son Pty Ltd [2020] NSWSC 878
O’Connor v O’Connor [2018] NSWCA 214
St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360
Hatfield vTCN Channel Nine Pty Ltd (2010) 77 NSWLR 506
Morton v Nylex Ltd [2007] NSWSC 562
Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64

Category: Principal judgment
Parties: Paul Pellarini (Plaintiff)
Bicher & Son Pty Ltd (Defendant)
Representation:
Counsel:
R Anderson (Plaintiff)
R Francois (Defendant)
Solicitors:
Addisons (Plaintiff)
Brown Wright Stein (Defendant)

File Number(s): 2023/00217380
Publication restriction: None

JUDGMENT

Pursuant to a summons filed on 10 July 2023 the plaintiff seeks an order for preliminary discovery.
The plaintiff is a minority shareholder (49.9995%) in the defendant company. The defendant operates the restaurant business known as Machiavelli Ristorante Italiano. Nicolae Bicher owns the remaining shares. He is also the sole director of the company.
The plaintiff seeks an order that the defendant give preliminary discovery of the following documents for the period 20 May 2020 to 30 June 2023:

the defendant’s point of sale records generated for all takings at the restaurant business, including those records commonly referred to as the “Z tapes”; and

the defendant’s business activity statements (“BAS”) as lodged with the Australian Taxation Office (“ATO”).

The hearing of the application took place on 20 February 2024. Mr Anderson appeared for the plaintiff. Ms Francois appeared for the defendant.
A joint court book was provided. The plaintiff relied on his affidavits dated 7 July 2023 and 2 November 2023. The defendant relied on affidavits of Rosanna Riccio dated 7 September 2023 and 29 November 2023 as well as an affidavit of David Ross dated 20 September 2023.
The defendant was granted leave to adduce further oral evidence of Ms Riccio (over the objection of the plaintiff). This evidence related to the defendant’s system of dealing with cash and making its point of sale records available to the company’s auditor, although she was cross-examined on a wider range of issues.

Nature of the application

The plaintiff and Mr Bicher have been shareholders in the defendant company, which operates the Machiavelli restaurant, for some considerable period. It seems…

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 Pellarini v Bicher & Son Pty Ltd

Details

AGLC: Pellarini v Bicher & Son Pty Ltd [2024] NSWSC 223
Case: [2024] NSWSC 223
Decision Date: 07 March 2024

CaseChat Overview and Summary

The case of Pellarini v Bicher & Son Pty Ltd was heard in the Supreme Court of Victoria. The plaintiff, Pellarini, alleged that the defendant company, Bicher & Son Pty Ltd, had failed to comply with its taxation obligations, which could potentially constitute a basis for winding up the company. The court was tasked with determining whether the plaintiff had a claim for relief based on the asserted failures.

The primary legal issue before the court was whether the plaintiff's allegations, if substantiated, could justify the winding up of the defendant company. The court had to examine the nature and extent of the asserted failures in relation to taxation obligations and assess their significance in the context of company law. The court also needed to determine whether the plaintiff had made out a case for preliminary discovery to facilitate the investigation of the allegations.

The court considered the principles of company law concerning the winding up of companies and the role of taxation obligations in such proceedings. It found that the plaintiff had not established a sufficient basis for the court to grant preliminary discovery, as the allegations did not demonstrate a clear and imminent need for further investigation. The court concluded that the plaintiff had not provided adequate evidence to suggest that the company was insolvent or likely to become insolvent due to the alleged failures. Consequently, the court denied the plaintiff's application for preliminary discovery and dismissed the case.

Orders