Turner v Ulicorp Pty Ltd [2007] NSWSC 206

Turner v Ulicorp Pty Ltd [2007] NSWSC 206

The plaintiff established grounds for winding up on the just and equitable ground because the circumstances surrounding the two $108,000 payments were capable of falling within director misconduct and more definitely showed erosion of confidence in just and fair dealing. However, because winding up is a last resort, the defendant and Wise directors had given undertakings preserving the position and committing to a voluntary winding up after the payroll tax matter was resolved, and justice could presently be served by waiting, the court exercised its discretion by adjourning the proceedings rather than making a winding up order.

Jurisdiction
Australia
Judgment Date
09 March 2007
Procedural Posture
Contributory's Application for a Winding Up Order on the Just and Equitable Ground Under S.461(1)(k) of the Corporations Act 2001 (cth) / Ex Tempore Judgment; Winding Up Application Adjourned
Outcome
Winding up application adjourned
Legal Topics
['winding Up' 'just and Equitable Ground' "contributory's Application" 'director Misconduct' 'lack of Confidence' "members' Voluntary Winding Up" 'discretion Under S.467(4)']
['corporations' 'equity'] ['winding Up' 'just and Equitable Ground' "contributory's Application" 'director Misconduct' 'lack of Confidence' "members' Voluntary Winding Up" 'discretion Under S.467(4)']

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Procedural Posture

Contributory's Application for a Winding Up Order on the Just and Equitable Ground Under S.461(1)(k) of the Corporations Act 2001 (cth) / Ex Tempore Judgment; Winding Up Application Adjourned

Legal Issues

  1. 1 ['Whether grounds for winding up on the just and equitable ground under s.461(1)(k) were established by alleged director misconduct or lack of confidence' 'Whether the court should exercise its discretion to make a winding up order or instead adjourn the proceedings in light of undertakings and a proposed voluntary winding up' 'Whether disputed payments of two sums of $108,000 to Wise directors required investigation by a liquidator']

Ratio Decidendi

The plaintiff established grounds for winding up on the just and equitable ground because the circumstances surrounding the two $108,000 payments were capable of falling within director misconduct and more definitely showed erosion of confidence in just and fair dealing. However, because winding up is a last resort, the defendant and Wise directors had given undertakings preserving the position and committing to a voluntary winding up after the payroll tax matter was resolved, and justice could presently be served by waiting, the court exercised its discretion by adjourning the proceedings rather than making a winding up order.

Court Disposition

Winding up application adjourned

Orders

  • ['Upon the undertakings given by the defendant and by Colin Wise, Stephen Wise and Roslyn Wise, the proceedings were adjourned to 9.30am on 11 September 2007 before Barrett J.' 'Liberty was granted to any party to apply to restore the matter to the list in the meantime, such application to be to Barrett J or, in his...