Hillam v Ample Source International Limited (No 2) [2012] FCAFC 73

Hillam v Ample Source International Limited (No 2) [2012] FCAFC 73

The conduct of BMG’s affairs, orchestrated by Mr Hillam, was systematically and seriously oppressive and commercially unfair to Ample Source within the meaning of s 232(e) of the Corporations Act 2001 (Cth). No error was found in the trial judge’s finding that alternative remedies were inadequate, and the winding up of the (solvent but deadlocked and mismanaged) company was the only appropriate order under s 233. There is no general principle precluding the winding up of a solvent company in such circumstances.

Parties
First Appellant: John Hillam; Second Appellant: Sarobol Teeranukul; First Respondent: Ample Source International Limited; Second Respondent: Bonython Metals Group Pty Limited
Jurisdiction
Australia
Judgment Date
18 May 2012
Procedural Posture
Appeal / Judgment After Appeal Hearing
Outcome
appeal dismissed
Legal Topics
Oppression, Winding Up of Companies, Directors' Duties, Shareholder Rights
Corporations Oppression Winding Up of Companies Directors' Duties Shareholder Rights

Case Brief

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Parties

John Hillam

First Appellant

Sarobol Teeranukul

Second Appellant

Ample Source International Limited

First Respondent

Bonython Metals Group Pty Limited

Second Respondent

Procedural Posture

Appeal / Judgment After Appeal Hearing

Legal Issues

  1. 1 Whether the conduct of BMG's affairs was oppressive or commercially unfair to Ample Source under s 232(e) of the Corporations Act 2001 (Cth)
  2. 2 Whether the winding up of a solvent company is justified as a remedy under s 233 of the Corporations Act 2001 (Cth)
  3. 3 Appropriateness of alternative remedies to winding up in cases of oppression

Ratio Decidendi

The conduct of BMG’s affairs, orchestrated by Mr Hillam, was systematically and seriously oppressive and commercially unfair to Ample Source within the meaning of s 232(e) of the Corporations Act 2001 (Cth). No error was found in the trial judge’s finding that alternative remedies were inadequate, and the winding up of the (solvent but deadlocked and mismanaged) company was the only appropriate order under s 233. There is no general principle precluding the winding up of a solvent company in such circumstances.

Court Disposition

appeal dismissed

Orders

  • The appeal be dismissed.
  • The appellants pay the first respondent's costs of the appeal.