Limnios, G. v Tambu Pty Ltd & Anor [1995] FCA 15

Limnios, G. v Tambu Pty Ltd & Anor [1995] FCA 15

The Court declined to appoint a provisional liquidator as the business was not carrying on and assets were not at risk of dissipation. Instead, orders should be made convening the annual general meeting with a quorum of one, allowing the majority shareholder to exercise voting rights and appoint an additional director, subject to undertakings that tax liability and trade creditors be paid, and no Company funds applied to proceedings until those debts are resolved.

Jurisdiction
Australia
Judgment Date
25 January 1995
Procedural Posture
Corporations; Winding Up Application and Cross Claim / Interlocutory Stage; Orders Pending, No Final Hearing
Outcome
Provisional liquidator not appointed; intention to make orders for annual general meeting with quorum of one; proceedings stood over for parties to bring in draft short minutes of orders; costs directions indicated but not finally ordered.
Legal Topics
['winding Up Just and Equitable Ground' 'appointment of Provisional Liquidator' 'company Management and Administration' 'quorum Requirements' 'general Meetings' 'derivative Actions']
['corporations Law'] ['winding Up Just and Equitable Ground' 'appointment of Provisional Liquidator' 'company Management and Administration' 'quorum Requirements' 'general Meetings' 'derivative Actions']

Case Brief

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Procedural Posture

Corporations; Winding Up Application and Cross Claim / Interlocutory Stage; Orders Pending, No Final Hearing

Legal Issues

  1. 1 ['Whether it is just and equitable to wind up the Company.' 'Whether a provisional liquidator should be appointed.' 'Whether orders should be made to convene the annual general meeting with a quorum of one.' "Whether the directors' breakdown constitutes an irretrievable collapse of trust and confidence." 'Whether majority shareholder can appoint an additional director.']

Ratio Decidendi

The Court declined to appoint a provisional liquidator as the business was not carrying on and assets were not at risk of dissipation. Instead, orders should be made convening the annual general meeting with a quorum of one, allowing the majority shareholder to exercise voting rights and appoint an additional director, subject to undertakings that tax liability and trade creditors be paid, and no Company funds applied to proceedings until those debts are resolved.

Court Disposition

Provisional liquidator not appointed; intention to make orders for annual general meeting with quorum of one; proceedings stood over for parties to bring in draft short minutes of orders; costs directions indicated but not finally ordered.

Orders

  • ['Second respondent to bring in draft short minutes of orders to give effect to Reasons.' 'Proceedings stood over to 30 January 1995 for making of orders.' "Intention to order annual general meeting convened by not less than 14 days' notice in writing by Tabensky alone; one member present (in person or proxy) to...