Boyd v Feeney & Ors [2017] NSWSC 1704

Boyd v Feeney & Ors [2017] NSWSC 1704

Because all parties consented to or did not oppose the appointment of Mr Nicols, and no party suggested further discussions had utility, the liquidator should be appointed without a stay. On costs, although Ms Boyd failed on specific performance and oppression claims and pursued a wider case that caused costs to be incurred, she obtained the winding up relief sought and the Defendants could have avoided the hearing by submitting to a Court-ordered winding up rather than maintaining a voluntary winding up proposal with practical difficulties. Fairness therefore required the First, Second and Third Defendants to pay one-quarter of the Plaintiff's costs not already dealt with by previous...

Jurisdiction
Australia
Judgment Date
07 December 2017
Procedural Posture
Costs and Appointment of Liquidator in Corporations Proceedings / Post Judgment Orders in Chambers Following Judgment Ordering Winding Up on Just and Equitable Grounds
Outcome
Liquidator appointed; previous costs orders preserved; First, Second and Third Defendants ordered to pay one-quarter of the Plaintiff's remaining costs.
Legal Topics
['party/party Costs' 'costs Follow the Event' 'appointment of Liquidator' 'just and Equitable Winding Up' 'discretion as to Costs']
['costs' 'corporations'] ['party/party Costs' 'costs Follow the Event' 'appointment of Liquidator' 'just and Equitable Winding Up' 'discretion as to Costs']

Case Brief

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Procedural Posture

Costs and Appointment of Liquidator in Corporations Proceedings / Post Judgment Orders in Chambers Following Judgment Ordering Winding Up on Just and Equitable Grounds

Legal Issues

  1. 1 ['Whether the appointment of a liquidator should take immediate effect or be stayed to allow further discussions or a voluntary liquidation.' "Whether the First, Second and Third Defendants should pay part of the Plaintiff's costs, or whether the Plaintiff should pay part of the Defendants' costs, where the Plaintiff obtained a winding up order on a narrow ground but failed on specific performance and oppression claims."]

Ratio Decidendi

Because all parties consented to or did not oppose the appointment of Mr Nicols, and no party suggested further discussions had utility, the liquidator should be appointed without a stay. On costs, although Ms Boyd failed on specific performance and oppression claims and pursued a wider case that caused costs to be incurred, she obtained the winding up relief sought and the Defendants could have avoided the hearing by submitting to a Court-ordered winding up rather than maintaining a voluntary winding up proposal with practical difficulties. Fairness therefore required the First, Second and Third Defendants to pay one-quarter of the Plaintiff's costs not already dealt with by previous...

Court Disposition

Liquidator appointed; previous costs orders preserved; First, Second and Third Defendants ordered to pay one-quarter of the Plaintiff's remaining costs.

Orders

  • ['Mr Steven Nicols of Nichols + Brien be appointed liquidator of D&D Corak Investments Pty Ltd ACN 000 057 849.' 'All previous costs orders in the proceedings remain in effect.' "The First, Second and Third Defendants pay one-quarter of the Plaintiff's costs of the proceedings not dealt with by previous costs...