Re Winter One Investments Pty Ltd - [2020] QSC 233

SUPREME COURT OF QUEENSLAND

CITATION:

Re Winter One Investments Pty Ltd [2020] QSC 233

PARTIES:

COWLEY SUPER PTY LTD A.C.N 602 737 879

(First Plaintiff)

AND

COWLEY CUSTODIAN PTY LTD A.C.N 602 736 470

(Second Plaintiff)

AND

J & R COWLEY SUPER PTY LTD A.C.N 616 582 202

(Third Plaintiff)

v

WINTER ONE INVESTMENTS PTY LTD A.C.N 603 454 628

(First Defendant)

AND

MARK ANDREW WILLIAMS
(Second Defendant)

FILE NO/S:

BS 7591 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application filed 11 June 2020

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2020

JUDGE:

Jackson J

ORDER:

The order of the Court is that:

1. Pursuant to section 461(1)(k) of the Corporations Act 2001 (Cth) the first defendant be wound up.

2. Marcus Watters be appointed liquidator.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF – OTHER CASES AND MATTERS – where the proceeding was started by originating application for orders that the first respondent be wound up – where it was ordered that the proceeding continue as if started by claim – where application is made for summary judgment for a winding up order – where the company does not trade – where the company’s assets are likely not valuable or recoverable – where the company’s assets have been transferred in substantial amounts to or at the sole director’s direction to benefit him and his family personally - where the winding up application is made by a minority shareholder whose shares are not transferrable - where there is prima facie evidence of breaches of duty by the sole director - where disputed questions of fact cannot be finally decided or determined – whether the defendants’ have no real prospect of successfully defending the plaintiffs’ claim – where the court ordered that the company be wound up on the just and equitable ground

CORPORATIONS – WINDING UP – OTHER GROUNDS FOR WINDING UP – JUST AND EQUITABLE – IMPOSSIBILITY OF EFFECTIVELY CARRYING ON BUSINESS – where the company does not trade – where the company’s assets are likely not valuable or recoverable – where the company’s assets have been transferred in substantial amounts to or at the sole director’s direction to benefit him and his family personally - where the winding up application is made by a minority shareholder whose shares are not transferrable - where there is prima facie evidence of breaches of duty by the sole director – whether an independent liquidator should be appointed to investigate the allegations and determine whether any claim should be brought against the second defendant and others

Corporations Act 2001 (Cth), s 461
Trusts Act 1973 (Qld), s 72
Uniform Civil Procedure Rules 1999 (Qld), r 2.2, r 14, r 291, r 292, r 995, Schedule 1A

China and Others v Smith (aka With) and Others (No 4) (2014) 99 ACSR 105, discussed
Coast Corp Pacific Pty Ltd…

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: [2020] QSC 233
Decision Date: 7 August 2020

CaseChat Overview and Summary

Re Winter One Investments Pty Ltd involved a winding-up application by a minority shareholder against a company that had ceased trading and whose assets appeared non-recoverable. The application was initiated by an originating application in the Federal Circuit Court of Australia. The central legal issues were whether the court could grant summary judgment for a winding-up order and whether the defendants had a real prospect of successfully defending the claim. The case also examined whether an independent liquidator should be appointed to investigate allegations against the sole director.

The court found that the plaintiff had presented prima facie evidence of breaches of duty by the sole director, including the transfer of substantial company assets for personal benefit. The company did not trade, its assets were likely not valuable or recoverable, and the minority shareholder's shares were not transferable. Given these circumstances, the court determined that there was no real prospect of the defendants successfully defending the claim. Consequently, the court ordered the company to be wound up on the just and equitable ground. The court appointed Marcus Watters as the liquidator to investigate the allegations and determine if any claim should be brought against the sole director and others.

The final orders of the court were that Winter One Investments Pty Ltd be wound up pursuant to section 461(1)(k) of the Corporations Act 2001 (Cth), with Marcus Watters appointed as the liquidator. This decision underscored the court's role in addressing winding-up applications where companies are non-trading, assets are depleted, and there are indications of mismanagement and breaches of duty by directors.

Orders

Orders of the court

The order of the Court is that:

1. Pursuant to section 461(1)(k) of the Corporations Act 2001 (Cth) the first defendant be wound up.

2. Marcus Watters be appointed liquidator.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Re Winter One Investments Pty Ltd [2020] QSC 233
PARTIES:	COWLEY SUPER PTY LTD A.C.N 602 737 879 (First Plaintiff) AND COWLEY CUSTODIAN PTY LTD A.C.N 602 736 470 (Second Plaintiff) AND J & R COWLEY SUPER PTY LTD A.C.N 616 582 202 (Third Plaintiff) v WINTER ONE INVESTMENTS PTY LTD A.C.N 603 454 628 (First Defendant) AND MARK ANDREW WILLIAMS (Second Defendant)
FILE NO/S:	BS 7591 of 2019
DIVISION:	Trial Division
PROCEEDING:	Application filed 11 June 2020
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	7 August 2020
DELIVERED AT:	Brisbane
HEARING DATE:	14 July 2020
JUDGE:	Jackson J
ORDER:	The order of the Court is that: 1. Pursuant to section 461(1)(k) of the *Corporations Act* 2001 (Cth) the first defendant be wound up. 2. Marcus Watters be appointed liquidator.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF – OTHER CASES AND MATTERS – where the proceeding was started by originating application for orders that the first respondent be wound up – where it was ordered that the proceeding continue as if started by claim – where application is made for summary judgment for a winding up order – where the company does not trade – where the company’s assets are likely not valuable or recoverable – where the company’s assets have been transferred in substantial amounts to or at the sole director’s direction to benefit him and his family personally - where the winding up application is made by a minority shareholder whose shares are not transferrable - where there is prima facie evidence of breaches of duty by the sole director - where disputed questions of fact cannot be finally decided or determined – whether the defendants’ have no real prospect of successfully defending the plaintiffs’ claim – where the court ordered that the company be wound up on the just and equitable ground CORPORATIONS – WINDING UP – OTHER GROUNDS FOR WINDING UP – JUST AND EQUITABLE – IMPOSSIBILITY OF EFFECTIVELY CARRYING ON BUSINESS – where the company does not trade – where the company’s assets are likely not valuable or recoverable – where the company’s assets have been transferred in substantial amounts to or at the sole director’s direction to benefit him and his family personally - where the winding up application is made by a minority shareholder whose shares are not transferrable - where there is prima facie evidence of breaches of duty by the sole director – whether an independent liquidator should be appointed to investigate the allegations and determine whether any claim should be brought against the second defendant and others Corporations Act 2001 (Cth), s 461 Trusts Act 1973 (Qld), s 72 Uniform Civil Procedure Rules 1999 (Qld), r 2.2, r 14, r 291, r 292, r 995, Schedule 1A China and Others v Smith (aka With) and Others (No 4) (2014) 99 ACSR 105, discussed Coast Corp Pacific Pty Ltd…