In the matter of Lorie Najjar & Sons Pty Limited (in liquidation) (No 2) [2013] NSWSC 1059

In the matter of Lorie Najjar & Sons Pty Limited (in liquidation) (No 2) [2013] NSWSC 1059

The liquidation was stayed to give effect to the prior judgment, but the Originating Process was not dismissed because the Liquidator had not had an opportunity to lead evidence or have a substantive hearing on that issue and the winding up was stayed rather than terminated. The Defendant was not released from undertakings because the proceedings remained on foot, although stayed. The Liquidator, as the true opponent of the stay application, was ordered to pay the Defendant's costs of the Interlocutory Process, while costs otherwise were reserved. The Court declined to deprive the Liquidator of indemnification, but required 14 days notice before recourse to Company assets or monies paid...

Jurisdiction
Australia
Judgment Date
08 August 2013
Procedural Posture
Interlocutory Applications in Corporations Winding Up Proceedings / Determination of Orders to Give Effect to Prior Judgment Staying the Winding Up
Outcome
Liquidation of the First Plaintiff stayed; proceedings stayed subject to directions and liberty to apply; specified costs orders made.
Legal Topics
['stay of Winding Up' 'termination of Winding Up' "liquidator's Costs and Remuneration" 'undertakings to the Court' "liquidator's Indemnity" 'stay of Proceedings']
['corporations Law' 'insolvency' 'civil Procedure' 'costs'] ['stay of Winding Up' 'termination of Winding Up' "liquidator's Costs and Remuneration" 'undertakings to the Court' "liquidator's Indemnity" 'stay of Proceedings']

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Procedural Posture

Interlocutory Applications in Corporations Winding Up Proceedings / Determination of Orders to Give Effect to Prior Judgment Staying the Winding Up

Legal Issues

  1. 1 ['Whether the liquidation of the First Plaintiff should be stayed by order giving effect to the prior judgment' "Whether the Plaintiffs' Originating Process should be dismissed or merely stayed" 'Whether the Defendant should be released from undertakings given to the Court' 'Whether costs orders should be made in respect of the Interlocutory Process and the Originating Process' "Whether the Second Plaintiff's right of recourse to company assets or monies paid into Court should be limited in respect of costs ordered against him" "Whether orders should be made at this stage concerning the Second Plaintiff's remuneration, costs and expenses of the winding up"]

Ratio Decidendi

The liquidation was stayed to give effect to the prior judgment, but the Originating Process was not dismissed because the Liquidator had not had an opportunity to lead evidence or have a substantive hearing on that issue and the winding up was stayed rather than terminated. The Defendant was not released from undertakings because the proceedings remained on foot, although stayed. The Liquidator, as the true opponent of the stay application, was ordered to pay the Defendant's costs of the Interlocutory Process, while costs otherwise were reserved. The Court declined to deprive the Liquidator of indemnification, but required 14 days notice before recourse to Company assets or monies paid...

Court Disposition

Liquidation of the First Plaintiff stayed; proceedings stayed subject to directions and liberty to apply; specified costs orders made.

Orders

  • ['Order that the liquidation of the First Plaintiff be stayed.' "Order that the Second Plaintiff pay the Defendant's costs of her Interlocutory Process filed 20 February 2012 as agreed or assessed." 'Order that the costs of the proceedings be otherwise reserved.' 'Order that the Second Plaintiff not have recourse to...