In the matter of Hardy Bros Equipment Pty Ltd [2021] NSWSC 1693

In the matter of Hardy Bros Equipment Pty Ltd [2021] NSWSC 1693

A winding up order under s 461(1)(k) of the Corporations Act was justified because there had been a complete collapse of the workable business and family relationship between the directors and shareholders, the substratum of the Company's business had failed in view of the liquidation of associated companies, company assets had been used without proper corporate approval, and there were substantial issues as to the integrity and accuracy of the Company's financial records. Costs should be limited to costs properly attributable to the winding up application, with no order as to the Cross-Claim, because the wider claims and cross-claims were not pressed and their merits were not determined.

Jurisdiction
Australia
Judgment Date
20 December 2021
Procedural Posture
Corporations Winding Up Application on Just and Equitable Grounds / Principal Judgment; Ex Tempore Judgment Revised on 20 December 2021
Outcome
Winding up order made; costs orders made.
Legal Topics
['winding Up on Just and Equitable Grounds' 'oppression Remedies' 'derivative Actions' 'costs']
['corporations Law' 'civil Procedure'] ['winding Up on Just and Equitable Grounds' 'oppression Remedies' 'derivative Actions' 'costs']

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Procedural Posture

Corporations Winding Up Application on Just and Equitable Grounds / Principal Judgment; Ex Tempore Judgment Revised on 20 December 2021

Legal Issues

  1. 1 ['Whether Hardy Bros Equipment Pty Ltd should be wound up on the just and equitable ground under s 461(1)(k) of the Corporations Act 2001 (Cth).' "Whether a winding up order was appropriate notwithstanding the parties' consent to that order." 'What costs orders should be made in respect of the winding up application and the Cross-Claim.']

Ratio Decidendi

A winding up order under s 461(1)(k) of the Corporations Act was justified because there had been a complete collapse of the workable business and family relationship between the directors and shareholders, the substratum of the Company's business had failed in view of the liquidation of associated companies, company assets had been used without proper corporate approval, and there were substantial issues as to the integrity and accuracy of the Company's financial records. Costs should be limited to costs properly attributable to the winding up application, with no order as to the Cross-Claim, because the wider claims and cross-claims were not pressed and their merits were not determined.

Court Disposition

Winding up order made; costs orders made.

Orders

  • ['Hardy Bros Equipment Pty Ltd be wound up under s 461(1)(k) of the Corporations Act and Mr Vaughan Strawbridge of FTI be appointed as its liquidator.' "The winding up order be stayed to 8pm on 20 December 2021 for the purpose of allowing an opportunity to obtain Mr Strawbridge's consent to act as liquidator."...