In the matter of L&B Seafood Pty Ltd [2022] NSWSC 242

In the matter of L&B Seafood Pty Ltd [2022] NSWSC 242

Although there was fault on both sides in the breakdown of the quasi-partnership, Mr Ding was the unsuccessful moving party on the cross-summons and unsuccessfully opposed the winding up. His conduct was a significant factor in the circumstances that made it just and equitable to wind up L&B Seafood, and his opposition increased Mr Yu's costs after notice that a costs order might be sought. Leaving Mr Yu to recover from company assets would, in practical terms, require him to bear at least 50 per cent of his own costs or more if assets were insufficient. The Court therefore exercised its discretion to order Mr Ding to pay Mr Yu's costs of both the originating process and the cross-summons...

Jurisdiction
Australia
Judgment Date
09 March 2022
Procedural Posture
Costs in Corporations Winding Up Proceeding and Cross Summons for Oppression Relief / Determined on the Papers After Winding Up Order and Dismissal of Cross Summons
Outcome
Second Defendant ordered to pay the Plaintiff's costs of the Plaintiff's Originating Process and the Second Defendant's Cross-Summons on the ordinary basis as agreed or assessed.
Legal Topics
['party/party Costs' 'winding Up on Just and Equitable Ground' 'oppression Proceedings' 'quasi Partnership Company' 'costs Payable From Company Assets or by Shareholder']
['costs' 'corporations Law' 'civil Procedure'] ['party/party Costs' 'winding Up on Just and Equitable Ground' 'oppression Proceedings' 'quasi Partnership Company' 'costs Payable From Company Assets or by Shareholder']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs in Corporations Winding Up Proceeding and Cross Summons for Oppression Relief / Determined on the Papers After Winding Up Order and Dismissal of Cross Summons

Legal Issues

  1. 1 ["Whether the plaintiff's costs of the successful winding up application should be paid out of the company's assets or by the second defendant shareholder." "Whether the plaintiff's costs of the dismissed cross-summons for oppression relief and a buy-out order should be paid by the second defendant, by the company, or shared." 'How the Court should exercise its costs discretion where a quasi-partnership relationship irretrievably broke down with fault on both sides.']

Ratio Decidendi

Although there was fault on both sides in the breakdown of the quasi-partnership, Mr Ding was the unsuccessful moving party on the cross-summons and unsuccessfully opposed the winding up. His conduct was a significant factor in the circumstances that made it just and equitable to wind up L&B Seafood, and his opposition increased Mr Yu's costs after notice that a costs order might be sought. Leaving Mr Yu to recover from company assets would, in practical terms, require him to bear at least 50 per cent of his own costs or more if assets were insufficient. The Court therefore exercised its discretion to order Mr Ding to pay Mr Yu's costs of both the originating process and the cross-summons...

Court Disposition

Second Defendant ordered to pay the Plaintiff's costs of the Plaintiff's Originating Process and the Second Defendant's Cross-Summons on the ordinary basis as agreed or assessed.

Orders

  • ["The Second Defendant is to pay the Plaintiff's costs of the Plaintiff's Originating Process and the Second Defendant's Cross-Summons on the ordinary basis as agreed or assessed."]