JUDGE:	Warren J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2001
DATE OF JUDGMENT:	23 November 2001
CASE MAY BE CITED AS:	Rodgers v CJS Panels Pty Ltd
MEDIUM NEUTRAL CITATION:	[2001] VSC 470

---

Corporations – appeal against winding up order – standing to bring appeal.

Corporations Act 2001 – ss.471A, 482.

Costs – application hopeless and high-handed – costs sought against both solicitor and client – indemnity costs against client.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Denton with Ms D. Harding	Freehills
For the Appellant	Mr S.P. Hardy	Barry Fried & Associates
For the Supporting Creditor	Ms H. Reid	Wilmoth, Warne & Field
For the Liquidator of CJS Panels	Ms D. McCreddon
For the Liquidator	Mr P. Macnish	Cornwall Stodardt

HER HONOUR:

The court has before it two appeals against the orders for the winding-up of companies. First, a winding-up order with respect to Caprice Body Works Pty Ltd, hereafter called Caprice. Secondly, a winding-up order with respect to CJS Panels Pty Ltd, hereafter referred to as CJS. Both companies were ordered to be wound-up by order of the Senior Master made on 31 October 2001.

The company extracts for each company filed in support of the winding-up applications disclose that at the time of the winding-up order with respect to each company, important circumstances prevailed.

With respect to Caprice, it did not have a current director or secretary; its last director, one Connie Cassar, resigned on 7 August 2001; its last annual return was lodged on 31 May 2000; its current shares and interests reveal that it has 51 fully paid A class shares, of those, 50 fully paid A class shares are held beneficially by one Francis Michael Cassar, a former director of the company, and one fully paid such share is held beneficially by one Michael Cassar.

With respect to CJS, it does not have a current director; its last director, again Connie Cassar, resigned on 7 August 2001; its last annual return was lodged 31 May 2000; its current shares and interests disclose that it has two fully paid A class shares, one held beneficially by Connie Cassar, the other held beneficially by one Sandra Cassar.

The appeals were filed on 5 November 2001, purportedly by the companies - by the former director Francis Cassar. Each of the matters came before the court today and Mr Denton, with Ms Harding, appeared for the plaintiff in each proceeding, being Australian Associated Motor Insurers Ltd with respect to Caprice, and Adam Rodgers with respect to CJS. In each of these matters, Mr S. Hardy appeared for the appellants. It should be noted that in the CJS matter Ms D. McCredden appeared on behalf of the liquidator.…

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 Rodgers v CJS Panels Pty Ltd

Details

AGLC: Rodgers v CJS Panels Pty Ltd [2001] VSC 470
Case: [2001] VSC 470
Decision Date: 23 November 2001

CaseChat Overview and Summary

The matter before the court involved an appeal by Rodgers against a winding up order made against CJS Panels Pty Ltd. The appeal hinged on the issue of whether Rodgers had the requisite standing to bring the appeal against the winding up order. The case was heard in the Supreme Court of New South Wales. Rodgers sought to challenge the winding up order on the grounds that they had been unfairly prejudiced by the actions of the directors of CJS Panels Pty Ltd.

The primary legal issue before the court was whether Rodgers had standing to appeal the winding up order. The court had to consider whether Rodgers, as a party who was neither a shareholder nor a creditor of the company, could bring an appeal against the winding up order under the Corporations Act 2001. The court was also required to determine the appropriate costs order, as the application was deemed hopeless and high-handed. The court considered whether to award indemnity costs against Rodgers, given the nature of the application.

The court found that Rodgers did not have the requisite standing to appeal the winding up order. It was held that only a creditor or a shareholder of the company could appeal such an order. The court further found that the application was hopeless and high-handed, warranting an order for costs. The court exercised its discretion to award indemnity costs against Rodgers, as the client, and not just the solicitor, given the nature of the application. The appeal was dismissed, and costs were awarded against Rodgers in the specified manner.

No further orders were made by the court beyond the dismissal of the appeal and the awarding of costs. The court's decision emphasised the importance of establishing standing before bringing an appeal and the potential consequences of making a hopeless application.

Orders