Gilsenan & anor v Trussted Frames & Trusses (Holdings) Pty Ltd & ors [2009] NSWSC 993

Gilsenan & anor v Trussted Frames & Trusses (Holdings) Pty Ltd & ors [2009] NSWSC 993

The affidavits established compliance with the requisite formal matters and, given the evidence and the consents of the relevant parties, it was just and equitable to wind up the first defendant. The plaintiffs could not have succeeded on the misconceived summons, while the cross-claimants succeeded on the cross-claim, so costs followed the event. There was no evidence adversely affecting the fitness of the cross-claimants' nominated liquidator, James Shaw, and therefore no reason to depart from the Court's ordinary practice of appointing the applicant's nominee.

Jurisdiction
Australia
Judgment Date
10 September 2009
Procedural Posture
Corporations Winding Up Proceeding / Ex Tempore Judgment on Summons and Cross Claim
Outcome
Summons dismissed; first defendant wound up on the just and equitable ground; liquidator appointed; plaintiffs ordered to pay costs.
Legal Topics
['winding Up on Just and Equitable Ground' 'appointment of Liquidator' 'costs' 'indemnity Costs']
['corporations' 'procedure'] ['winding Up on Just and Equitable Ground' 'appointment of Liquidator' 'costs' 'indemnity Costs']

Case Brief

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Procedural Posture

Corporations Winding Up Proceeding / Ex Tempore Judgment on Summons and Cross Claim

Legal Issues

  1. 1 ['Whether Trussted Frames & Trusses (Holdings) Pty Limited should be wound up on the just and equitable ground.' 'Whether the liquidator nominated by the cross-claimants should be appointed.' 'Whether the plaintiffs should pay costs, including indemnity costs on the summons from 31 August 2009.']

Ratio Decidendi

The affidavits established compliance with the requisite formal matters and, given the evidence and the consents of the relevant parties, it was just and equitable to wind up the first defendant. The plaintiffs could not have succeeded on the misconceived summons, while the cross-claimants succeeded on the cross-claim, so costs followed the event. There was no evidence adversely affecting the fitness of the cross-claimants' nominated liquidator, James Shaw, and therefore no reason to depart from the Court's ordinary practice of appointing the applicant's nominee.

Court Disposition

Summons dismissed; first defendant wound up on the just and equitable ground; liquidator appointed; plaintiffs ordered to pay costs.

Orders

  • ['The summons be dismissed with costs, such costs to be assessed on an indemnity basis from 31 August 2009 and otherwise on a party/party basis.' 'Trussted Frames & Trusses (Holdings) Pty Limited be wound up on the just and equitable ground.' 'James Shaw of 3/2 Market Street, Newcastle, an official liquidator, be...