In the matter of Dungowan Manly Pty Ltd (in liq) [2015] NSWSC 915

In the matter of Dungowan Manly Pty Ltd (in liq) [2015] NSWSC 915

The liquidator is justified in transferring the property upon execution of the agreed share surrender agreement and set-off of mutual debts; valid levies may be chosen by the liquidator to form the judgment sum provided there is no double recovery; interest on unpaid levies is recoverable under Civil Procedure Act s 100 and the Court may dispense with pleading rules as appropriate; in allocating costs, the bulk is borne by the unsuccessful shareholder defendants according to their role in the proceedings, subject to exceptions for mixed or abandoned claims.

Jurisdiction
Australia
Judgment Date
10 July 2015
Procedural Posture
Corporations List (equity Division) – Proceedings for Directions Under Corporations Act and Cross Claims / Post Trial Judgment Determining Form of Orders and Costs
Outcome
Orders made substantially in accordance with draft orders; Third, Fourth, Fifth and Sixth Cross-Defendants to pay disbursements and two-thirds of Plaintiffs' costs from joinder; otherwise, no order as to costs.
Legal Topics
['liquidation' 'directions to Liquidator' 'costs Orders' 'trusts' 'interest Under Civil Procedure Act' 'mortgages' 'set Off in Insolvency']
['corporations Law' 'equity' 'civil Procedure'] ['liquidation' 'directions to Liquidator' 'costs Orders' 'trusts' 'interest Under Civil Procedure Act' 'mortgages' 'set Off in Insolvency']

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Procedural Posture

Corporations List (equity Division) – Proceedings for Directions Under Corporations Act and Cross Claims / Post Trial Judgment Determining Form of Orders and Costs

Legal Issues

  1. 1 ['Whether liquidator justified in transferring property to shareholders subject to mortgage and share surrender agreement;' 'Entitlement of liquidator to judgment against shareholders on levies;' 'Form of set-off permitted under s 553C Corporations Act;' 'Whether liquidator may elect between components of levies raised;' 'Entitlement to interest on judgments for unpaid levies;' 'Appropriate costs orders as between liquidator, shareholders, and competing claimants;' 'Priority of costs in winding up under s 556 Corporations Act;' 'Effect of s 449E Corporations Act on administrators’ remuneration claimed in levy']

Ratio Decidendi

The liquidator is justified in transferring the property upon execution of the agreed share surrender agreement and set-off of mutual debts; valid levies may be chosen by the liquidator to form the judgment sum provided there is no double recovery; interest on unpaid levies is recoverable under Civil Procedure Act s 100 and the Court may dispense with pleading rules as appropriate; in allocating costs, the bulk is borne by the unsuccessful shareholder defendants according to their role in the proceedings, subject to exceptions for mixed or abandoned claims.

Court Disposition

Orders made substantially in accordance with draft orders; Third, Fourth, Fifth and Sixth Cross-Defendants to pay disbursements and two-thirds of Plaintiffs' costs from joinder; otherwise, no order as to costs.

Orders

  • ['Liquidator directed (s 511 Corporations Act) to transfer property to McLaughlins upon share surrender agreement;' 'Company declared trustee of property for McLaughlins, subject to Turner Freeman mortgage;' 'Company to deliver transfer after receipt of agreement and satisfaction of requirements;' 'Judgment in...