Re Avakiwi Pty Ltd;

[2004] QSC 1

SUPREME COURT OF QUEENSLAND

CITATION:

Re Avakiwi Pty Ltd;  ex parte Clark [2004] QSC 001

PARTIES:

PETER JOHN CLARK
(applicant)
v
AVAKIWI PTY LTD ACN 101 426 902
(first respondent)

RODGER FANTHAM BAYLY

(second respondent)

FILE NO:

BS 11252 of 2003

DIVISION:

Trial

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

16 January 2004

DELIVERED AT:

Brisbane

HEARING DATE:

14 January 2004

JUDGE:

Douglas J

ORDER:

Adjourn the application to the Civil List for hearing

CATCHWORDS:

CORPORATIONS – WINDING UP – WINDING UP BY COURT – GROUNDS FOR WINDING UP – WINDING UP ON THE JUST AND EQUITABLE GROUND – DEADLOCK – IMPOSSIBILITY OF EFFECTIVELY CARRYING ON BUSINESS – WHETHER WINDING UP APPROPRIATE REMEDY AT INTERLOCUTORY STAGE

COUNSEL:

M J Byrne QC, with him P J Hanlon, for the applicant
M R Bland for the respondent Rodger Fantham Bayly

SOLICITORS:

Adamsons Solicitors for the applicant
McCullough Robertson Lawyers for the respondent Rodger Fantham Bayly

1. By a partnership agreement (“the agreement”) that commenced on 25 July 2002 Rodger Bayly (“Mr Bayly”) and Robert Bayly entered into partnership with Dylroy Pty Ltd (“Dylroy”), a company controlled by the applicant, Peter Clark.  Another party to the agreement was the company Avakiwi Pty Ltd (‘Avakiwi’). 

1. Avakiwi’s role under the agreement was to act as nominee for the partnership for administrative convenience and to hold the partnership assets as a custodian or nominee only.  It was required to deal with partnership assets as directed by the partners and was authorised to make supplies to and acquisitions from third parties for all purposes connected with the partnership business as the nominee of and on behalf of the partnership and to issue tax invoices on its behalf;  see cl. 4 of the agreement.

1. Avakiwi became the registered proprietor of land at Mount Tamborine on 15 October 2002.  The land had been used to grow avocados and kiwifruit and the parties intended that it should continue to be operated as such, relying on the expertise of at least Mr Bayly and, it seems, of his brother Robert in that field.  It was also envisaged that the land may be developed and/or sold in the future but there is a dispute between the parties as to when that possibility might occur.  Mr Bayly swears that his understanding of his discussions with Mr Clark about the purpose of the partnership was that subdivision for residential purposes would not be considered for at least five years which was why he and his brother agreed to commit capital in excess of $30,000 in the first year to make improvements to the horticultural operation and embarked on a plan to undertake substantial pruning and thinning of the avocado trees on the property to create improved production in two to three years time;  see paras 14 and 15 of his affidavit filed 13 January 2004.  Those discussions appear to be reflected in the definition of ‘sunset date’ in the agreement as the fifth anniversary of the commencement date; see also the terms of…