Legal Research
Cases
Re Windsor Development Co Pty Ltd (in liq) (No 2)

Re Windsor Development Co Pty Ltd (in liq) (No 2)

Link copied

Case Copied 7 June 2024 78 min read

Contents

On this page

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

CORPORATIONS LIST

S ECI 2022 00106

IN THE MATTER of WINDSOR DEVELOPMENT COMPANY PTY LTD
(IN LIQUIDATION) ACN 609 746 045

MATHEW GOLLANT IN HIS CAPACITY AS LIQUIDATOR OF WINDSOR DEVELOPMENT COMPANY PTY LTD (IN LIQUIDATION) (ACN 609 746 045)	First Plaintiff
and
WINDSOR DEVELOPMENT COMPANY PTY LTD (IN LIQUIDATION) (ACN 609 746 045)	Second Plaintiff

---

JUDGE:	Matthews J
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 6, 7 February 2024
DATE OF JUDGMENT:	7 June 2024 (First Revision 11 July 2024)
CASE MAY BE CITED AS:	Re Windsor Development Co Pty Ltd (in liq) (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 297 (First Revision (11 July 2024): [44])

---

CORPORATIONS – Liquidation – Corporations Act 2001 (Cth), ss 477(2B), 90‑15 of the Insolvency Practice Schedule, Schedule 2 – Liquidator seeking direction that they are justified in compromising claims of the company in liquidation – Liquidator has already entered into agreement to compromise subset of company’s claims and seeks nunc pro tunc relief in respect of that agreement in the alternative - Company in liquidation is bare trustee – Investor parties and creditors oppose the direction – Alternate proposal of investor parties to that of compromising claims – Adequacy of legal advice on settlement – Sufficiency of evidence as to the liquidator’s process – Re One.Tel Ltd (2014) 99 ACSR 247, Re McDermott and Potts (in their capacities as joint and several liquidators of Lonnex Pty Ltd (in liq)) (ACN 097 786 751) [2019] VSCA 23, considered.

---

APPEARANCES:	Counsel	Solicitors
For the plaintiffs	Mr S Maiden KC Mr N Kotzman	Gadens Lawyers
For the first third party	Mr H Austin KC Mr A Roe	Mills Oakley
For the second third party	Mr J Kohn	Capstone Koroneos Legal
For the third and fourth third parties	Mr SR Horgan KC Mr J Leung	Dominic Esposito Solicitors & Attorneys

Contents

A.. Introduction

B.. Background

B.1          The Company and the key protagonists
B.2          The liquidation of the Company
B.3          Disputes between the various protagonists
B.4          The value of the Company’s claims
B.5          The First Baker Deed and its subsequent variation, and the Plaintiffs’ original application
B.6          Hearing of the Original Application
B.7         Further negotiations involving Baker and Reindel
B.8          Further negotiations involving the Investor Parties
B.9          The Liquidator’s further amendment of his originating process

C.. Present applications

D.. Key questions for determination

E... Evidence

F... Relevant law in respect of the Primary Relief

F.1 Statutory provisions
F.2 Applicable principles

G.. Submissions in respect of the Primary Relief

G.1         Plaintiffs’ submissions
G.1.1        The Court’s jurisdiction and role
G.1.2        Legal advice and disclosure to the Court
G.1.3        The value of the Company’s claims
G.1.4        The Company’s right of indemnity
G.1.5        The Liquidator’s process
G.1.6        Indemnification of the Liquidator
G.1.7       Investor Parties’ loss or damage

G.2         Reindel’s submissions
G.2.1        The Court’s jurisdiction and role
G.2.2        The Liquidator’s process
G.2.3        Indemnification of the Liquidator
G.2.4        Investor Parties’ loss or damage

G.3 Baker’s submissions

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 Re Windsor Development Co Pty Ltd (in liq) (No 2) 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: [2024] VSC 297
Decision Date: 7 June 2024 (First Revision 11 July 2024)

CaseChat Overview and Summary

The case of Re Windsor Development Co Pty Ltd (in liq) (No 2) involved the liquidators of Windsor Development Co Pty Ltd, who were seeking direction to confirm their decision to compromise claims of the company. The dispute arose in the Supreme Court of Victoria, where the liquidators had already entered into an agreement to compromise a subset of the company's claims. The liquidators sought nunc pro tunc relief to validate the compromise agreement and faced opposition from both investor parties and creditors. The investor parties proposed an alternate resolution to the liquidators' compromise.

The central legal issues in this case revolved around whether the liquidators were justified in compromising the claims of the company and whether the compromise agreement was adequately supported by legal advice and evidence. The court had to consider the principles established in prior cases, such as Re One.Tel Ltd and Re McDermott and Potts, which emphasised the need for careful consideration and adequate evidence in such compromises.

The court examined the liquidators' process and the adequacy of the legal advice provided. It held that the liquidators had not adequately justified their decision to compromise the claims and did not provide sufficient evidence of their process. The court also considered the opposition from the investor parties and the creditors, who argued that the compromise was not in the best interest of the company. Ultimately, the court ruled against the liquidators, stating that the compromise agreement was not justified and lacked the necessary evidence to support it.

The final orders of the court were that the liquidators were not justified in compromising the claims of Windsor Development Co Pty Ltd. The court did not grant the nunc pro tunc relief sought by the liquidators and required them to adhere to the proper process for compromising claims in future.

Orders