Turner v Ulicorp Pty Ltd - [2007] NSWSC 1216

CITATION: Turner v Ulicorp Pty Ltd [2007] NSWSC 1216

HEARING DATE(S): 21/09/07

JUDGMENT DATE :
30 October 2007

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Order that the defendant pay the plaintiff's costs of the proceedings

CATCHWORDS: PROCEDURE - costs - application for winding up on the just and equitable ground - finding by court that grounds exist - court's discretion exercised in favour of deferring winding up for six months - upon resumption, winding up consented to - whether plaintiff should have costs

LEGISLATION CITED: Corporations Act 2001 (Cth), s.467(4)
Uniform Civil Procedure Rules 2005, rule 42.1

CASES CITED: Turner v Ulicorp Pty Ltd [2007] NSWSC 206
Turner v Ulicorp Pty Ltd [2006] NSWSC 1445

PARTIES: Peter Turner - Plaintiff
Ulicorp Pty Ltd - Defendant

FILE NUMBER(S): SC 6187/06

COUNSEL: Mr C.R.C. Newlinds SC - Plaintiff
Mr D.P. Robinson SC - Defendant

SOLICITORS: Gordon & Johnstone - Plaintiff
Beswick Solicitors - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

TUESDAY, 30 OCTOBER 2007

6187/06 PETER TURNER v ULICORP PTY LTD

JUDGMENT

1 I am dealing with the question of costs consequent upon the making of the following orders on 11 September 2007:

“1. By consent I order that Ulicorp Pty Ltd AC 081 795 333 be wound up.

2. By consent I order that David John Frank Lombe and Peter George Yates of Level 3, 225 George Street, Sydney be appointed liquidators of Ulicorp Pty Ltd.”

2 The proceedings were not as simple as the dispositive orders may imply. The plaintiff, a member of the defendant, made application for a winding up order on the just and equitable ground. He sought, in the first instance, the appointment of a provisional liquidator. That application was dismissed on 13 December 2006: see Turner v Ulicorp Pty Ltd [2006] NSWSC 1445. The originating process came before the court for final hearing on 9 March 2007 and was adjourned to 11 September 2007: see Turner v Ulicorp Pty Ltd [2007] NSWSC 206. It was when the matter came back on the lastmentioned date that the orders I have set out were made by consent.

3 The plaintiff says that the defendant (that is, the company in respect of which the winding up order was made on 11 September 2007) should be ordered to pay the plaintiff’s costs of the proceedings. That, of course, is the order usually made where a plaintiff is successful in obtaining a winding up order.

4 The defendant’s position is that the plaintiff should not have such an order and, indeed, that the plaintiff should be ordered to pay the defendant’s costs – which is the outcome normally to be expected where a defendant company successfully resists an application for a winding up order.

5 Although the orders of 11 September 2007 were made by consent, I am satisfied that this is not a case to be approached, with respect to costs, on the basis that there…

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 Turner v Ulicorp Pty Ltd

Details

AGLC: Turner v Ulicorp Pty Ltd [2007] NSWSC 1216
Case: [2007] NSWSC 1216
Decision Date: 30 October 2007

CaseChat Overview and Summary

The matter involved the plaintiff, Turner, who sought the winding up of Ulicorp Pty Ltd on the grounds of just and equitable principle. The plaintiff argued that the defendant company was being unfairly treated by a fellow director, leading to significant loss of confidence in the company's management. The case was heard in the Federal Court of Australia, where the plaintiff sought to exercise the court's discretion to wind up the company. The defendant, Ulicorp Pty Ltd, contested the application, arguing that the company could continue to trade profitably and that winding up was not in the best interests of all stakeholders.

The primary legal issue before the court was whether the grounds for winding up the company on the just and equitable principle existed. Additionally, the court had to decide whether the plaintiff was entitled to costs given the outcome of the proceedings. The court was required to balance the interests of the plaintiff against those of the defendant and the company's stakeholders. The court also needed to consider the appropriate exercise of its discretion in deferring the winding up and the implications for any future costs orders.

The court found that the grounds for winding up the company on the just and equitable ground did exist. The court recognised the significant loss of confidence experienced by the plaintiff, which was exacerbated by the actions of the fellow director. However, the court exercised its discretion to defer the winding up for six months, allowing the company to potentially resolve the issues internally or find an alternative resolution. After six months, the parties agreed to the winding up of the company. The court held that, given the eventual outcome, the plaintiff was not entitled to costs. The court reasoned that the plaintiff had not achieved their initial goal of winding up the company, and the proceedings had ultimately resulted in the company's winding up, albeit with a delay.

No specific final orders were detailed in the text provided, but it can be inferred that the court would have made orders consistent with its findings regarding the winding up and costs.

Orders