Sassine v Ray & Sons Construction Pty Limited [2012] NSWSC 1307

Sassine v Ray & Sons Construction Pty Limited [2012] NSWSC 1307

The Company should be wound up because the shareholders were in admitted deadlock, their confidence had profoundly broken down, George had been excluded from major decisions, company affairs were being dealt with without proper joint involvement or accessible records, Court orders and processes had not produced effective cooperation, and the buy out/reference alternative was no longer practical; those factors outweighed any asserted solvency or possible adverse commercial effects of liquidation.

Jurisdiction
Australia
Judgment Date
26 October 2012
Procedural Posture
Application for Winding Up and Appointment of Liquidator on the Just and Equitable Ground / Interlocutory Application by Amended Notice of Motion Seeking Final Relief
Outcome
Detailed winding up orders proposed, subject to undertakings being offered by the parties; the winding up and appointment of liquidator were to be stayed until 2pm on 16 November 2012 if undertakings were given.
Legal Topics
['winding Up on Just and Equitable Ground' 'shareholder Deadlock' 'breakdown of Confidence Between Shareholders' 'mismanagement or Lack of Confidence in Management' 'stay of Winding Up Order' 'appointment of Liquidator']
['corporations' 'civil Procedure'] ['winding Up on Just and Equitable Ground' 'shareholder Deadlock' 'breakdown of Confidence Between Shareholders' 'mismanagement or Lack of Confidence in Management' 'stay of Winding Up Order' 'appointment of Liquidator']

Case Brief

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Procedural Posture

Application for Winding Up and Appointment of Liquidator on the Just and Equitable Ground / Interlocutory Application by Amended Notice of Motion Seeking Final Relief

Legal Issues

  1. 1 ['Whether Ray & Sons Construction Pty Ltd should be wound up under s 461(1)(k) of the Corporations Act 2001 (Cth) on the just and equitable ground in circumstances of shareholder deadlock and breakdown of confidence.' "Whether alternatives to winding up, including a buy out following a referee's valuation, remained practical or appropriate." 'Whether any winding up order should be stayed for a short period subject to undertakings.' 'Whether further steps in the proceedings should be restricted without leave of the Court.']

Ratio Decidendi

The Company should be wound up because the shareholders were in admitted deadlock, their confidence had profoundly broken down, George had been excluded from major decisions, company affairs were being dealt with without proper joint involvement or accessible records, Court orders and processes had not produced effective cooperation, and the buy out/reference alternative was no longer practical; those factors outweighed any asserted solvency or possible adverse commercial effects of liquidation.

Court Disposition

Detailed winding up orders proposed, subject to undertakings being offered by the parties; the winding up and appointment of liquidator were to be stayed until 2pm on 16 November 2012 if undertakings were given.

Orders

  • ['Order that the First Defendant be wound up.' 'Order that David Mansfield be appointed as Liquidator of the First Defendant.' 'Subject to further order of the Court and on the basis of the acknowledgments and undertakings set out in paragraph 4, the orders for winding up and appointment of liquidator be stayed to...