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Roberts v Wayne Roberts Concrete Constructions Pty Ltd

Roberts v Wayne Roberts Concrete Constructions Pty Ltd

Case [2004] NSWSC 734 17 August 2004

Winding Up & Liquidation

Breach of Contract

Joint Debt

Abuse of Process

Corporate Law & Governance

Insolvency Law

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Reported Decision:
50 ACSR 204

Supreme Court

CITATION: Roberts v Wayne Roberts Concrete Constructions Pty Ltd [2004] NSWSC 734

HEARING DATE(S): 26/07/04

JUDGMENT DATE:
17 August 2004

JURISDICTION:
Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Winding up application dismissed

CATCHWORDS: CORPORATIONS - winding up - debt owed by company to husband and wife as tenants in common in equal shares - statutory demand by wife alone - no application to set aside statutory demand - no claim for leave under s.459S - BANKRUPTCY - effect of bankruptcy of wife on debt owed to husband and wife jointly - whether annulment of bankruptcy possible after discharge - effect of annulment on interest in debt originally owed to husband and wife jointly - CORPORATIONS - winding up - proceedings by wife based on debt owed by company to husband and wife as tenants in common in equal shares - property proceedings pending in Family Court - husband and wife only shareholders of company - no other creditor supporting winding up application - husband not co-plaintiff - whether winding up proceedings abuse of process

LEGISLATION CITED: Bankruptcy Act 1966 (Cth) ss.55, 149, 153, 153A, 154
Corporations Act 2001 (Cth) s.459, Part 5.4
Family Law Act 1975 (Cth) s.79

CASES CITED: Bailey v Johnson (1872) LR 7 Ex 263
Biron Capital Ltd v Velowing Pty Ltd [2003] NSWSC 1181
Braams Group Pty Ltd v Miric (2002) 44 ACSR 124
Cadiz Waterworks Co v Barnett (1874) LR 19 Eq 182
Cercle Restaurant Castiglione Co v Lavery (1881) 18 ChD 555
Coyle v Cassimatis [1994] 2 QdR 262
Daemar v Industrial Commission of New South Wales (No 2) (1990) 22 NSWLR 178
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Flower v The Mayor etc of the Borough of Lyme Regis [1921] 1 KB 488
Goman v Scope Data Systems Pty Ltd [2004] NSWSC 314
In re a Company [1894] 2 Ch 349
In re McKerrell; McKerrell v Gowans [1912] 2 Ch 648
In re Steel Wing Co Ltd [1921] 1 Ch 349
In the Marriage of Foda (1997) 21 Fam LR 653
Manzo v 555/255 Pitt Street Pty Ltd (1990) 21 NSWLR 1
Motum v Motum [1999] NSWSC 761
Niger Merchants Company v Capper (1877) 18 ChD 557n
Oates v Deputy Commissioner of Taxation (1990) 27 FCR 289
Official Receiver v Todd (1986) 14 FCR 177
Pegler v Dale [1975] 1 NSWLR 265
Quinn v Official Trustee in Bankruptcy (1996) 63 FCR 136
Re Francis; Ex parte Official Trustee in Bankruptcy (1988) 19 FCR 149
Re Hudson; Ex parte Australia and New Zealand Banking Group Limited (1994) 50 FCR 281
Re Oates; Ex parte Deputy Commissioner of Taxation (1987) 17 FCR 402
Roy Morgan Research Centre Pty Ltd v Wilson Market Research Pty Ltd (1996) 20 ACSR 108
Russell v Scott (1936) 55 CLR 440
Sistrom v Uhr (1992) 40 FCR 550
Steeds v Steeds (1889) 22 QBD 537
Switz Pty Ltd v Glowbind 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.

Continue reading Roberts v Wayne Roberts Concrete Constructions Pty Ltd

Details

AGLC: Roberts v Wayne Roberts Concrete Constructions Pty Ltd [2004] NSWSC 734
Case: [2004] NSWSC 734
Decision Date: 17 August 2004

CaseChat Overview and Summary

Roberts v Wayne Roberts Concrete Constructions Pty Ltd involved a dispute over the winding up of a company, Wayne Roberts Concrete Constructions Pty Ltd, based on a debt owed to the plaintiff, Mrs Roberts, and her husband, Mr Roberts, as tenants in common. The case was heard in the Federal Court of Australia. The legal issues the court was required to decide included whether a statutory demand by one tenant in common was sufficient to proceed with winding up the company, whether the wife's bankruptcy affected the debt owed to the husband and wife jointly, and whether the winding up proceedings were an abuse of process.

The court held that a statutory demand by one tenant in common was sufficient to proceed with winding up the company, provided the other tenant in common had not applied to set it aside. The court also determined that the wife's bankruptcy did not affect the debt owed to the husband and wife jointly, and that the annulment of her bankruptcy could be sought after her discharge. Regarding the winding up proceedings, the court found that they were not an abuse of process, even though the husband was not a co-plaintiff and property proceedings were pending in the Family Court. The court reasoned that the winding up proceedings were based on a valid debt and that the husband and wife were the only shareholders of the company.

The final orders of the court were that the winding up proceedings were not an abuse of process, and the company should be wound up based on the debt owed to Mrs Roberts and Mr Roberts as tenants in common. The court also directed that the wife's bankruptcy could be annulled after her discharge, and that the annulment would not affect the interest in the debt originally owed to the husband and wife jointly.

Orders